HomeMy WebLinkAboutMINUTES - 02282006 - C.21 (4) 9
AW-08-2005(TLE) 15:36 on -gat P.004/018
.r
1 WELLIAM B SMM'H[ =BV W 58338)
ROBERT J.WALDSMrM(Suft B.N 163774)
2 ABRAMSON SMITH WALDSMITH,LLP
44 Morrtgomery Street,Suite 3340
3 San.Francisco,California 94104 1DOS t�0„ _g p
Telephone: (415)421-7995
4 Facsimile:(415)421-0912 rti
S A,ttomeys for Plaintiffs
MlaIAEL MATAMOROS and
6 MATAMOROS PIPELINES,INC.
7
8 SUPMUOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF CONTRA COSTA
10
11 MICHAEL MATAMOROS,individually Case No. 13Y FAX
12 and MATAMOROS PIPELINES,INC.,a
Corporation
13 plaixttiml COMPLAINT FOR DAMAGES
(� 14 v
KINDER MORGAN ENERGY PER-CASE IS A RU1t:5 THIS
15 PARTNERS,IP-K NDER MORGAN IS ASS IO
16
q.JP INC.;KIND7ER MORGAN,INC.- DEPT
SFP1'',LP;CAMP DRESSER&M;ia,
17 INC.;CAROLLO ENGINEEILS;
COMFORCE TECHNICAL SERVICES,
1s INC.;MOUNTAIN CASCADE,INC.;
EAST BAY MUNICIPAL UTILITY
19 DISTRIC'It;AGES 1-200,inclusive
20 Deftdants.
21
22
FIRST CAUL OF ACTION'FOR NA GLtGENCE B1tOUG$'I'
23 BY U A.I1MM AGAINST ALL D ORM&NTfi ANTI}DOES 1-900
24 1. Defendants Does 1-200,inclusive%are sued herein by fictitious names because
25 plaintiffs are ignorant of the true names or capacities of said defendants,but wiU insert the
26 same herein'when asecctained.
27 2- . At all times mentioned herein,each defendant was acting as the agent,partner,
28 j
;� •• Coa�pJaint£o�Damagcs
-/14 W4701046
1Od202lPI1-11(8l�1>�11:1Q22 dER
1 employer, employee, independent contractor,successor in interest,alter ego, subsidiary,parent
2 or joint venturer of each other and was acting within the course and scope of such relationship.
3 3. At all times mentioned herein,defendants KINDER MORGAN ENERGY
4 PARTNERS,L.P.(hereinafter"KMEP"),KINDER MORGAN G.P.,INC. (hereinafter
5 "KMGP")KINDER MORGAN,INC.(hereinafter"KMT'),SFPP,LP (hereinafter"SFPP"),
6 CAMP DRESSER&McKEE,INC. (hereinafter"CDM"),CAROLLO ENGINEERS,
7 COMFORCE TECHNICAL SERVICES,INC. (hereinafter`COMFORCE") and DOES 1
8 through 50 planned, designed,manufactured,constructed,installed,engineered,excavated,
9 trenched, owned,operated,controlled,supervised,managed,located,field marked,flagged,
10 mapped, identified, surveyed, charted,monitored and inspected a high pressure fuel pipeline
11 system located,in part,in the City of Walnut Creek,County of Contra Costa, State of
12 California(hereinafter"Kinder Pipeline').
13 4. At all times mentioned herein,defendants MOUNTAIN CASCADE INC.
14 (hereinafter"MOUNTAIN CASCADE")and DOES 51 through 100 planned, designed,
15 manufactured,constructed,installed, engineered, excavated,trenched,owned,operated,
16 controlled, supervised,managed,located,relocated,field marked,flagged,mapped,identified,
17 surveyed,charted,monitored and inspected a public works construction project for defendant
18 EAST BAY MUNICIPAL UTILITY DISTRICT(hereinafter"EBMUD')known as the
19 Walnut Creek-San Ramon Valley Improvement Project(hereinafter"the Project")which
20 involved the installation of a water pipeline(hereinafter"the EBMUD Pipeline")in the vicinity
21 of a high pressure fuel pipeline system located,in part,in the City of Walnut Creek,County of
22 Contra Costa, State of California.
23 5. On or about November 9,2004,and prior thereto,defendants KMEP,KMGP,
24 KMI SFPP,CDM,CAROLLO ENGINEERS,COMFO.RCE and DOES 1-50 so negligently,
25 carelessly,willfully and recklessly planned,designed,manufactured, constructed,installed,
26 engineered,excavated,trenched,owned,operated,controlled,supervised,managed,located,
27 field marked,marked, flagged,mapped,identified,surveyed,charted,monitored and inspected
(� 28 2
Complaint for Damages
I the Kinder Pipeline so as to cause its location to be unknown,uncertain and misidentified,and
2 thus dangerous.
3 6. On or about November 9,2004, and prior thereto, defendants KMEP,KMGP,
4 KMI SFPP,CDM,CAROLLO ENGINEERS,COMFORCE and DOES 1-50 so negligently,
5 carelessly,willfully and recklessly failed to properly locate and mark the location of the Kinder
6 Pipeline under Government Code§4216.3,California Code of Regulations §1541(b)(1), and
7 CFR 49,Part 195.442(a);failed to properly advise MOUNTAIN CASCADE and DOES 51-
8 100 of the location of the Kinder Pipeline in relation to the E13MUD Pipeline in accordance
9 with Government Code §4216.3,California Code of Regulations §1541(b)(1), and CFR 49,
10 Part 195.442(a);and failed to properly monitor and inspect the excavation work on the Project,
11 survey the conditions, and determine safeguards necessary to conduct the work in a safe
12 manner pursuant to California Code of Regulations §1511(b)so as to cause the location of the
13 Kinder Pipeline to be unknown,uncertain and misidentified,and thus dangerous..
14 7. On or about November 9,2004,and prior thereto, defendants MOUNTAIN
15 CASCADE MOUNTAIN CASCADE and DOES 51 through 100 so negligently,carelessly,
16 willfully and recklessly planned,designed,manufactured,constructed,installed, engineered,
17 excavated,trenched,owned,operated,controlled,supervised,managed,located,relocated,
18 field marked,marked,flagged,mapped,identified,surveyed, charted,monitored and inspected
19 the EBMUD Pipeline Project as it followed South Broadway between Newell Avenue and
20 Rudgear Road in the City of Walnut Creek,County of Contra Costa, State of California,as to
21 penetrate the Kinder Pipeline and to cause flammable material within it to escape,causing a
22 major explosion and large fire.
23 8. On or about November 9,2004,and prior thereto,defendants MOUNTAIN
24 CASCADE MOUNTAIN CASCADE and DOES 51 through 100 so negligently, carelessly,
25 willfully and recklessly failed to verify or determine the exact location of the Kinder Pipeline
26 that was in conflict with the its excavation in violation of Government Code Section 4216.4(a)
27 so as to cause flammable material within it to escape,causing a major explosion and large fire.
�. 28 3
Complaint for Damages
1 9. By reason of the conduct of defendants herein alleged,the resulting explosion
2 and fire caused the death of three and injuries to two experienced employees of plaintiffs
3 MICHAEL MATAMOROS and MATAMOROS PIPELINES,INC.,significant damage to
4 personal property,loss of profits,and loss of business.
5 10. By reason of the conduct of defendants herein alleged,plaintiffs MICHAEL
6 MATAMOROS and MATAMOROS PIPELINES,INC.seek interest according to the law.
7
8 SECOND CAUSE OF ACTION FOR PREMISES LL4,BILITY BROUGHT
BY PLAIN'T'IFFS AGAINST KMEP, SFPP,KMGP,KMT,
9 CDM,CAROLLO ENGINEERS,COMFORCE,
MOUNTAIN CASCADE AND DOES 1 THROUGH 100
.10
11. Plaintiffs hereby incorporate by reference each and every allegation contained in
11
paragraphs 1 through 10 of the First Cause of Action and make it a part of this Second Cause
12
of Action as though fully set forth herein.
13
12. At all times mentioned herein,defendants KMEP,KMGP,KMI SFPP,CDM,
14
CAROLLO ENGINEERS,COMFORCE,MOUNTAIN CASCADE, and DOES 1-100 owned,
15
controlled and/or occupied the land,property and/or premises in which the EBMUD Pipeline
16
was being excavated.
17
13. At all times mentioned herein,said real property contained a hidden condition or
18
conditions which created an unreasonable risk of harm to the public and those working on the
19
Project,including plaintiff MICHAEL MATAMOROS and the employees of plaintiff
20
MATAMOROS PIPELINES,INC.
21
22 14. At all times mentioned herein,defendants KMEP,KMGP,KMI SFPP, CDM,
CAROLLO ENGINEERS, COMFORCE, MOUNTAIN CASCADE, and DOES 1-100 knew
23
or should have known about such condition or conditions, and failed to make reasonable
24
inspections to discover such condition or conditions.
25
15. At all times mentioned herein,defendants KMEP,KMGP,KMI SFPP,CDM,
261
CAROLLO ENGINEERS, COMFORCE,MOUNTAIN CASCADE, and DOES 1-100
27
28 negligently,carelessly and recklessly failed to take reasonable precautions to protect against
i.
Complaint for Damages
I such condition or conditions and the harm likely to result therefrom, and/or give adequate
2 warning to those likely to be injured therefrom,and negligently, carelessly and recklessly
3 owned, controlled and/or occupied the land,property and/or premises in which the EBMUD
4 Pipeline was being excavated.
5
6 THIRD CAUSE OF ACTION BROUGHT BY PLAINTIFFS FOR STRICT LIABII.ITY
FOR ULTRAHAZARDOUS ACTIVITIES AGAINST DEFENDANTS KMEP
7 KMGP KMI SFPP CDM COMFORCE CAROLLO ENGINEERS
AND DOES 1 THROUGH 50
8
16. Plaintiffs hereby incorporate by reference each and every allegation contained in
9
paragraphs 1 through 10 of the First Cause of Action and paragraphs 12 through 15 of the
10
Second Cause of Action,and make it a part of this Third Cause of Action as though fully set
11
forth herein.
12
17. At all times mentioned herein, defendants KMEP,KMGP,KMI SFPP, CDM,
13
10 COMFORCE, CAROLLO ENGINEERS and DOES 1-50 planned, designed,manufactured,
14
constructed,installed,engineered, excavated,trenched,owned,operated,controlled,
15
supervised,managed,located, field marked,marked, flagged,mapped,identified,surveyed,
16
charted,monitored and inspected the high pressure fuel pipeline system known as the Kinder
17
Pipeline,which constituted ultrahazardous activities that created a high degree of risk of
18
significant harm to persons and property due to the extremely flammable and volatile nature of
19
the petroleum and fuel transported by the Kinder Pipeline through a residential neighborhood
20
and the community.
21
18. As a result of defendants KMEP,KMGP,KMI SFPP, CDM,COMFORCE,
22
CAROLLO ENGINEERS and DOES 1-50 engaging in the aforesaid ultrahazardous activities,
23
plaintiffs MICHAEL MATAMOROS and MATAMOROS PIPELINES,INC. sustained
24
significant damage to personal property,loss of profits,and loss of business,the kind of harm
25
that would be anticipated as a result of the risk created by the aforesaid ultrahazardous
26
activities.
27
19. The aforesaid ultrahazardous activities were a substantial factor in causing said
28 5
Complaint for Damages
i
1 harm to plaintiffs.
2
FOURTH CAUSE OF ACTION FOR NEGLIGENT INTERFERENCE
3 WITH PROSPECTIVE ECONOMIC RELATIONS BROUGHT
BY PLAINTIFFS AGAINST DEFENDANTS KMEP,KMGP,KMI,SFPP,
4 CDM COMFORCE CAROLLO ENGINEERS MOUNTAIN CASCADE
AND DOES 1 THROUGH 100
5
20. Plaintiffs hereby incorporate by reference each and every allegation contained in
6
paragraphs 1 through 10 of the First Cause of Action and paragraphs 12 through 15 of the
7
Second Cause of Action,and paragraphs 17 through 19 of the Third Cause of Action,and
8
make it a part of this Fourth Cause of Action as though fully set forth herein.
9
21. Prior to November 9,2004,plaintiffs contracted with MOUNTAIN CASCADE
10
to perform welding on the Project that would have resulted in economic benefits to plaintiffs.
11
22. Defendants KMEP,KMGP,KMI SFPP,CDM,COMFORCE,CAROLLO
12
ENGINEERS,MOUNTAIN CASCADE,and DOES 1-100 knew or should have known of the
:s 13
economic relationship between plaintiffs and MOUNTAIN CASCADE.
14
23. Defendants KMEP,KMGP,KMI SFPP,CDM,COMFORCE,CAROLLO
15
ENGINEERS,MOUNTAIN CASCADE,and DOES 1-100 knew or should have known that their acts
16
17 and/or omissions were substantially certain to disrupt the economic relationship between plaintiffs and
MOUNTAIN CASCADE.
18
19
24. Defendants KMEP,KMGP,KMI SFPP,CDM,COMFORCE,CAROLLO
ENGINEERS,MOUNTAIN CASCADE,and DOES 1-100 acted negligently,carelessly,willfully
20
and recklessly,as outlined above.
21
25. The failure of Defendants KMEP,KMGP,KMI SFPP,CDM,COMFORCE,
22
CAROLLO ENGINEERS,MOUNTAIN CASCADE,and DOES 1-100 to act with reasonable care
23
was a substantial factor in causing a disruption of plaintiffs economic relationship with MOUNTAIN
24
CASCADE.
25
26
27
28 6
Complaint for Damages
i
t
1 FIFTH CAUSE OF ACTION FOR MALICE AND OPPRESSION
BROUGHT BY PLAINTIFFS AGAINST DEFENDANTS KM EP,KMGP,IMI,
2 SFPP CDM COMFORCE CAROLLO ENGINEERS MOUNTAIN CASCADE
AND DOES 1 THROUGH 100
3 -
26. Plaintiffs hereby incorporate by reference each and every allegation contained in
4
paragraphs 1 through 10 of the First Cause of Action and paragraphs 12 through 15 of the Second
5
Cause of Action,and paragraphs 17 through 19 of the Third Cause of Action,and paragraphs 21 .
6
through 25 of the Fourth Cause of Action,and make it a part of this Fifth Cause of Action as though
7
fully set forth herein.
8
27. At all tunes mentioned herein,defendants KMEP,KMGP,KMI SFPP,CDM,
9
COMFORCE,CAROLLO ENGINEERS,MOUNTAIN CASCADE,and DOES 1-100 intended to
10
cause injury or engaged in willful,wanton,malicious,oppressive,grossly negligent,reckless,and
11
despicable conduct carried on with a conscious disregard for the rights or safety of others,including
12
plaintiffs and their employees,given the dangerous and ultrahazardous nature of the work performed
13
on the Project,the Kinder Pipeline,the close proximity of the Kinder Pipeline to the EBMUD Pipeline,
14
the failure to properly locate and field mark the location of the Kinder Pipeline under Government
15
Code§4216.3 and California Code of Regulations§1541(b)(1),the failure to adequately identify the
16
location of the Kinder Pipeline in relation to the EBMUD Pipeline in accordance with Government
17
Code§4216.3,the failure to monitor and inspect the excavation work on the Project,survey the
18
conditions,and determine safeguards necessary to conduct the work in a safe manner under California
19
Code of Regulations§1511(b).
20
28. At all times mentioned herein,the actsand omissions of defendants KMEP,KMGP,
21
KMI SFPP, CDM,COMFORCE,CAROLLO ENGINEERS,MOUNTAIN CASCADE,and DOES
22
1-100 subjected plaintiffs and their employees to cruel and unjust hardship,justifying an award of
23
punitive or exemplary damages.
24
29. At all tunes mentioned herein,officers,directors and/or managing agents of defendants
25
KMEP,KMGP,KMI SFPP,CDM,COMFORCE,CAROLLO ENGINEERS,MOUNTAIN
26
CASCADE,and DOES.1-100 had advance knowledge of the unfitness of its employees and
27
contractors,and employed or retained them with a conscious disregard of the rights or safety of others,
28
7
Complaint for Damages
I authorized or ratified the wrongful conduct of its agents,employees,representatives,independent
2 contractors,justifying an award of punitive or exemplary damages.
3
4 SIXTH CAUSE OF ACTION FOR DANGEROUS CONDPTION OF PUBLIC PROPERTY
BROUGHT BY PLAINTIFFS AGAINST EBMUD AND DOES 101-130
5
30. Plaintiffs hereby incorporate by reference each and every allegation contained in
6
paragraphs 1 through 10 of the First Cause of Action and paragraphs 12 through 15 of the Second
7
Cause of Action,and paragraphs 17 through 19 of the Third Cause of Action,and paragraphs 21
8
through 25 of the Fourth Cause of Action,and make it a part of this Sixth Cause of Action as though -
9
fully set forth herein.
10
31. At all times mentioned herein,EBMUD,and DOES 101-110,inclusive,and each of
11
them,owned and or controlled the property where the Project was performed.
.12
32. Due to the dangerous and ultrahazardous nature of the Project,the Kinder Pipeline and
13
� the location of the Kinder Pipeline;the property was in a dangerous condition at the time of the
14
incident.
15
16 33. Due to the dangerous and ultrahazardous nature of the Project,the Kinder Pipeline.and
the location of the Kinder Pipeline in the vicinity of the EBMUD Pipeline,the dangerous condition on
17
the property created a reasonably foreseeable risk of harm to plaintiffs and the employees of plaintiffs
18
which ultimately occurred.
19
34. At all tunes mentioned herein,E13NM and DOES 101-110 had actual and constructive
20
notice of the dangerous condition for a sufficient period of time to plan,design,own,supervise,
21
control,survey,construct,and or otherwise manage the Project in a safe manner to ensure the safety of
22
the public and those working on the Project,including plaintiffs and their employees.
23
35. At all times mentioned herein,EBMUD and DOES 101-110 acted so as to cause harm
24
to plaintiffs and their employees.
25
36. The dangerous condition on the property was a substantial factor in causing harm to
26
plaintiffs and their employees.
27
37. On or about May 9,2005,plaintiffs,and each of them,presented their claims to
28 8
Complaint for Damages
I E13MUD pursuant to Government Code§910. On or about May 10,2005,EBMUD rejected the
2 claims in their entirety.
3
4 PRAYER FOR RELIEF
5 WHEREFORE,plaintiffs MICHAEL MATAMOROS as an individual,and MATAMOROS
6 PIPELINES as a corporation,prays for judgment against all defendants,and each of them as follows:
7 1. For non-economic damages in an amount to be proven at trial;
8 2. For economic damages in an amount to be proven at trial;
9 3. For punitive and exemplary damages in an amount to be proven at trial and as requested
.10 in this Complaint;
11 4. For costs of suit;and
12 5. For such other and further relief as the Court deems proper.
13 DATED: November 7,2005 ABRAMSON SMITH WALDSMML LLP
14
15
WILLIAM B.SMffT'H
16 Attorneys for Plaintiffs MICHAEL
MATAMOROS and MATAMOROS
17 PIPELINES,INC.
18
19
20
21
22
23
24 .
25
26
27
28
9
Complaint for Damages '
l�
ABRAMSON SMITH WALDSMITH, LLP
ALBERT R.ABRAMSON PHONE: (415)421-7995
WILLIAM B.SMITH ATTORNEYS AT LAW FAX (415)421-0912
ERIC M.ABRAMSON 44 MONTC,OMERY STREET SUITE 7340 EMAIL: )natioc@abr&nwm-smidLwm
ROBERT].WALDSMITH SAN FRANCISCO.CALIFORNIA 94104-4712 WEBSITE: www.nbnm+on-amidLwm
November 21, 2005
Jason Zhao
Lewis-Brisbois Bisgaaard & Smith
One Sansome St. #1400
San Francisco, CA 94104
Re: Matamoros v. Kinder Morgan. et al.
Case No. MSC05-02349
Dear Mr. Zhao:
Pursuant to your telephone request, enclosed is a copy of
the above-entitled complaint for damages.
Very truly yours,
KayB xter for
WILLIAM B. SMITH
t
io
jp�
•�,2l89/28Q5 11:58.... .925 sr -�vr• ': ...:: .M, " - 27 -;•: PAGE 03/18 .
1
PAM UrATM WVV*w. M*SW AkMTiv,dAWO `' Atm aa6axalY
®ter J. McNulty, Req.ISSN: 89660 llrr 7
r4gNNulty Law Firm
827 Moraga Drive
Loa Angeles, California 90049 -�
rataaamm; (310) 471-2707 (310) 472-7014
�A n - ii►4 f -2 A Or 4y
Plainti Ifs
wuworoculrr.SUPERIOR COURT OF CALIFORNIA •• .--•R�
BrFl s.Acomm725 Court Street K ,
raNaJWAMlasse,Same
arrAw%ww aMartin:ez, CA 94553 s�.,►•ti ttuH
auwaanula Mrtrti>aea .
Pt,WWff.JEREMY AND JOHANNA SNOX
DOWMANT:MOUNTAIN CASCADE,. INC.; KINDER MORGIAN ENERGY
\` PARTNERS OF HOUS'T'ON, YNC., and .
D=i TO 50
U �wyi Property Damage,Wro1►MI Death
AMMTy"tan"*Aff tw+(WY), Assigned to D"ftent
rJ ttro'TOIt VENCLE [S]WHER(spedly): General Negligence All purpose assignment,pe
C�:.j t>mpdaWDamage rJ Daatft Intentional Tort Code of Civil Proc. i7ox
Peraamat MJury 3(]Other Dawown(spm:Exetaplacy
Oudetticlion khwk N dWt apply?:'
AC1tON IS A LW=CW CASE CASE Nina
Amo t dearta tdedchess not ext eed 110.W0 SUMMONS ISSUED
r ACMN IS AN UNLIW XM CASE ftcoeds$2 W exceed S25,Q0o
ACTION IS RECLASWED by thfa amended comp1aW �, 0 0 U V
[� tirptrr limited to ttrdt n ted
Aom uramited to Smhed
1. PLAWFF Oww): JERBUY AND JOHANNA KNOX' -
sAges came of action against DEFENDANT(nam X mmTkm cmm, I=.; xmsn aaoxaatr araner pj%Tm as or emosrou
2 This pleadn%Inciudinq aataohn nts and WON.,consists of the followaag mimber of pages: 7 __...
9.Each al 0 named above Is a competent atduft
a Each
except pWntNf Ovme): "
(1) Q a omporaft qualMed to do busbies In cwifornla
(2) El
an uNr>corpar d axatigr( :
Cd1 a pubNc aaltltyr/atasa►be):
.(4) C1 a rninor [3 an atim
(a)M tax whom a guardhm or conservator of rine mate or a guardian ad Stam has been appointed
90 t.7 othef rte):
(5) C1 Geier(speow.
b. except plalr(tltf(rams): -
(1) a owporadon gttafflW to do business In Calfamia
(2) ['1 an tmincaporatedmt1ty WtWrft).
0 a pub4o " Jho
(4) O a minor an ad*
for whom A guardan Or Cflnst3ry W of the estate or a guardian ad rmm has been appointed
(b) other(spedo.
(6) L`1 other*a*):
' tntonnatfun about addiMenal plat alis who are not competent wkft Is shown in Complaint—Attachment 3.
- — !tial ers
COMPLAINT--Persona!I*ry,Property ooesMa•oRooea�se.raz6.t:
2005 _A7 Lt
02/09/ sror 2. .. . . r P.p►t 04/1011:58 92537 . �..a.✓,r+�...•s..+: ,f 1P1hC,*_. ,:... tir4:.c..a '
SHORT TrnreXNOX.v. MOUNTAIN CASCADE, at al. c,ue
4. Ph mitt bums):
Is doing business undor l he fk:tltious name Opedfj).
and has cm r@W wOh the fid bus business name laws.
6. Each defendant named above Is a natural person
a.U3 except defendant(Rema):M4tTNTAItt a 0 vxow detehdant(Hame):
CASCADE, INC. - (hereinafter "MCI")
(1) [3 a business organWon,form unknown (1)[]a business awiftntift tomb urdm"
0 an unincorporated entity(descd W, (3) C-1 an unincorporated m*(dewAW:
(4) [.1 a pubtla oft(dasarlbel: (4) a public entity(dsswft).
other(speow): (6) n ottrar'Op ft
b, [TJ except detandant kAmO. .KINDER MORGAN d, wept defendant(Raine).
BNBSOr PARTNERS Or HOUSTON, INC.
(hereinafter "KbW")
(1) (D a business w9ariltadon,fdan unknOm (!) f�]a business oWLM50n,form urtlo: m
0 CEJ a ocrpondon 0 C"J a wrporavon
(3) CD an unincorporate enflty(deser/bs): _J an uninowporated enfly(desofbe):
(4) C.-j a public entity(desarrW.. (4) a pub0o entity(dmrffie)
(5) (_;]other(apo*). (S1 [)other(spew.
C7 Inf ormadon about addttlonai datendants who are not natural parsons is cwdWnM In Oomplatht—Anadarrent rS.
e.The tnre names and copaotl>s of defendants sired as Does are unkn wn to ptalndit.
7.[ 1 Debndw b who are joined pursuant to Code of Civil Procedure sedion 382 ars(names,):
e. This court to the proper court be=30
a, r.j at least one defendant now resides In lrs Wsdiodonal area. .
b. L-j the prfndpal place d business d a defendant corpwa6on or unlroorpomied assodaiion b In ft jurisdicdonai area,
o. to person or darnap to perwnal property ocdnred In as juriedictonal area.
d 1—J other'(spedry):.
S.F",J Plaintiff is required to comply with a daims emm,and
a. ploirtdif has wmplled wish appllmWe dakne statutes,or
b. plairtdit Is mwusati from complying bemuse(specify).
aaatm ►�+rt.2oo� COMPLANT Personal Inturv.Prooww
82/89/2886 P,w7, 85/i8
nef ppT � �• � .M.•�I.. �..f 4 .
}l i 58 9253 ,.-•w'•.i"r!Y V»^.t:".t: •�'•..0. �� .t ��.....•. .:a.�.•JY.I.t.-•-•ww.r,Iw...aN:w��31/v,••+:. .+:M=L•:..r.t..i•�.:
SHORTTMJR:KNOX v. MOUNTAIN CASCADE, at al. t:A6Ctglttet9lC
10.The following causes of aodon are etmohed and the Mabsments above apply to eaoh(such oampAaW ntwt hew one ar mons
oatws of$Wbn.rtttaalteap;
IL M t> MW vehicle
h 44neral twoenoe
a .I aftnal Tort
d, Prodtute UnWilty
e: [] Premises Liability
f. (._] Other(s w*):
11.plain"bas satww
at.ru "ve hm
b.(_—j Ives of use of properly
a CXR hospital and medical expenses
d [rX] V w d dump9.L property damage
f. L].loss of vandng aWaolN
g.aj otherdump Oped&)t Los's of Consortium by plaintiff, Johanna Knox
It L The damages claimed for wrongU death and ft reams of platntilf to the deceased are
a p rsted In CwWlaMt—Atfachme 12
b.[, as tunawrs
13.The m1l9f nought in ibis eompWmt is within the lwb&+ckn of this oourt
14.PWHT1FF PRAYS for)udgment for hosts of sun;for such teller as ie W 1u4 and equMaWe;and for
at. (1) LM oonpetwabay,dwneges
t7� Ln Wtddw des
b. The tamarra of dartwges Ila boy fuer d*0.(t)1h oases Abram#*W cr wmngAd death):
(1) �8] ►fi�!
12) [] b ifiv au mf ot:8
113, G-It: Tfte pwawaphs of this omm om aiteged on information and belief ate as follows(speW psrago•mph numbers):
(2), (3) and (4) -
am January , 2005
Pater .3. Matsui v '
`� on tgtctr wt►et oR Ma""
t ttttt aubt.teooaa GOMPLA[RIT—Pa=nal lWury,PmPettvl_ vw►o.ts i
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KNOX•v. MOUNTAIN CASCADE, et al.
FrRST CAUSE OF ACTION-General Negligent
Owl
ATTACHMENT TO ®CompWnt t-leroes-Camplalnt
Ohs s sepamts cause of adkn farm for each cause of&OW
WI. Plairdiff OwWl JERMfY XNOX
aneges thatdabndant(nanw). Nor, DW and
M Does I W-sn -
was to Istel(p aknaW cause of damages to pi nft By the bUowing acts or omisstorm to act. deteridam
pee4f m My caused the dtunage to pttr 0
pn(~. Tuesday? November 9, 2004; 1 :30 p.m.
atwawk walnut creek, california
oeserfPUM of reamm for Sabel:
1. Jeremy Rnox, a welder, employed. by Matamoros-welding, was working on part of
the, East Say Municipal 'Utilities District water pipeline project when an MCI
employee operating a backhoe breached the gas pipeline owned by MW causing an
explosion to occur.
2. MCI, by and through its agents and employees, Does 1-10 inclusive, is
responsible, under the doctrine of respondeat superior, for said acts and
omissions, Which include but are not limited to failure to properly notify MSP
acid identify the gas pipeline prior to digging and failing to protect the
integrity of the subject gas pipeline.
3. -KWW, by. and through its agents and employees, Does 11-20 inclusive, is
responsible for plaintiff Jeremy 14zox's injuries due to their failure to
properly identify, demark and otherwise-protect the subject. gas pipeline from
inadvertent breach.
4. Does 21-50 inclusive, are responsible, in ways yet .unknown, for this
avoidable 'tragedy.. Leave will be sought to amend this Complaint to set forth
their.roles and responsibility once ascertained.
i
1i
r Va.
cw,oaat�++. CAUSE OF ACTION-genera!Negkierm
SO&+�a+
e 2i ► I LPS STOW 26
02/99/2985 11"5 „•.,.,,,, ,:•.-e-r•+�r»••e•.. .» ., .. '•,,.•s• :. .;.r_:.��.,a::.•i.:,,,,,:;,•...�:a•....... •.......:.
sHOFrT T ,m aaee
RNOX V. MOUNTAIN CASCADE, et al.
SECOECAUSE OR ACTION-General Negllgenee page.5
ATTACHMENT TO i3Tvl COmMnt r-30 ss-Complaint
(Use a separafe cause of Sao"W"%r each cause of soft)
GN-1. Plc mW(name); JOHAMA KNOX
after that defendant(hama). MCI, KW and
M Does 1_..._.,iso_._._--
Wa6 the lapel(peo9Mate?ttauas 01dama9W to plaMft gY the tollon rQ acs or oMWslons to aot, defendant
nep9Qenty amw the damage to PL*"
0n(daps; Tuesday, November 9,. 2004; 1:30 p_m.
atCbmosek Walnut Creek, California
ftasfipgon of awomw forftW1yr
1» Plaintiff, Johanna Knox, repeats and reallages as if set forth in full
herein, the First Cause of Aotion.
2. -plaintiff, Johanna Knox, was lawfully married to Jeremy Knox at the time 'of
the subject incident and as a result of defendants negligent acts and omissions
suffered loss of.. his consortium due to the injuries sustained by hint_
�� Faas�pprowaq�e
"a CAUSE OF ACTION-General Negligence �, ,Q,L
��� tr
926372 7 l�S Wis.
92/89/2805 11:58 .. _....�... -,.•r,r:... . . ...
MORTME KNOX v. MOUNTAIN CASChDS, at al. CANNMem
D CAUSE OF ACTION-IntOntlonal Tort Pop
tis
ATTACHMENT TO IAC]Complaint C2 Qrft& ompla1M
Mw a separate cause of soBon Orm Aw each cause of adba)
MI. MOM Mame): JZR8MY XNOX
leges that defendant(r wa - MCI and
MJ Does 1 _�_to 5
vmx the legal (Pns*naie) cause of damages W plehin By the fdIa4v seta or amissbns to act, defenders
Mmvon*caused the damage to piainM
onofa*- Tuesday, November 9, 2004; 1:30 p.m.
at(place): Walnut Creek, California
{desrxtj�nrt olreesa►s fw Ifeblf�r.
1. Plaintiff repeats and realleges as if.set forth in full the First
Cause of Action.
2. MCI and Does 1 through 5 were aware, prior to commencing digging
In -the area, that x>*M's gasoline pipeline was in the immediate area
and posed a significant risk of-danger should it be breached;
especially if people in the area were operating machinery or tools
that could provide a source of ignition.
3. MCI and Doeg 1 through. 5 were also aware that backhoe digging
operations were ongoing and ghat welders would be working in the same
area. Due to a desire to maximize corporate profits and avoid delay
penaties at the expanse of human life, despite the known damages, MQI
and.Does 1 through 5 chose to proceed with digging and welding
operations 4espite knowing the exact location of HMEP's gas pipeline
y '
and taking all Aecessarsteps to locate. it, isolate it and prevent it
from being inadvertently breached.
4. As a.proximaita result of these defendants willful, wanton. and
malicious misconduct, the subject avoidable explosion occurred and
plaintiff was severely injured.
i
1
audewo ter. CAUSE OF ACTION-Intentional Tort
ft%Ws V14'c.rat oCp Qatt
s
MLFS
02/99/2i� . 11 58 „ _•m,.,-_w»;�r ... :�:: - °RE 27: .. . . P 89/19
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SHORTTME- IQIOX v. MOVMAIV CASCADE, et ax. CASENUMOIN
Exemplary Damages AURdunent ° 2----
ATTAC imW TO [X]Complaint. []6ow4ompialnt
EX-1. As addidwW damages against defendant(name!: MCI and DOES 1-5
Plaintiff aNeges doWdant was guilty of
I1 mallei
LD fraud
OppmSim
as daih'W hi Cita Coda eecdon 3284 end WON should recover, in addition to actual damages, damages
lo make an example of and to punish defendant
DC-1 The face supporting plidnd rs dalm are as foNows:
1. Plaintiff repeats- and realleges as if set forth in full herein,
Plaintiff's First and Third CePases of Action.
Thp-gmmm of exemplary damages sought is
I.LX J riot Shown,pursuant to Code of OM Procedure aaodon 425,10.
r�. Cts
r EXERPLARY DAAAAOES ATTACHMENT Lwd
ria.est., .
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-Peter J. McNulty, geg./SSU: 89660
McNulty Law >Pirm
827 Moraga vrive
Los mgeles,- CaUfornia 90049
TpA4wewa4 (310) 471-2707 PAxwa (310) 472-7014
stamttoit vaunt opcAur'ot "covim ox CON= COSTA 1U05 -2 A � 2 b
eraeEtnIX W 725 Court. Street -
wwme ANMM Same 1
CPYAMZ+oaoe Martinez, CA 94553—
artinex
CIWE NAA : RNOX v. MOUNTAIN CASCADE, et al.
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Data:January 13, 2005 ,
Peter_J., tdrsTulty _
NOTICE
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c p treat tiled that w at flan viceedirtg telae ww dakmw es or oases flied
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CIVIL Offs
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==81
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I JOHN M.ANTON State Bar No.54888
WILLIAM E LOMBARDINI, State Bar No. 191464
2 BOXER&GERSON, LLP
300 Frank H. Ogawa Plaza
3 Rotunda Building, Suite SW Q
Oakland, California 94612 IF I LE
4 Telephone: (510)835-8870 ALAMEDA coUNT`!
Facsimile: (51Q)835-0415 SAN 2 6 2005
5
ANTONIO RUIZ,State Bar No. 155659 E SUP RRr
6 CONCEPCIbON E. LOZANO-BATISTA, State Bar No.227 � nepu�Y
WEINBERG, ROGER&ROSENFELD, P.C.
7 A Professional Corporation
180 Grand Avenue,Suite 1400
8 Oakland, California 946123752
Telephone: (510)839-6600
9 Facsimile: (510)891-0400
10
Attorneys for Plaintiffs
11
SUPERIOR COURT OF THE STATE OF CALIFORNIA
12
13 COUNTY OF ALAMEDA R G p 519 5 5 6 7
JUANA LILIAN ARIAS,individually and CASE NO. -
14 as gguardian ad(item for ADRIANA
CRISTINA RODRIGUEZ ARIAS and COMPLAINT FOR PERSONAL
15 ALEGANDRA STEPHANIE INJURIES AND WRONGFUL DEATH
RODRIGUEZ-ARIAS,minors, and
16 ALICIA RODRIGUEZ,
17 Plaintiffs,
18 vs.
19 IKINDER MORGAN, INCORPORATED;
IQNDER MORGAN ENERGY i
20 PARTNERS LP;MOUNTAIN
CASCADE, INC.; and DOES 130,
'
. 21
Defendants. i
22
23 Plaintiffs, by and through their attorneys Boxer&Gerson, LLP, and Weinberg,
• i
24 Roger&Rosenfeld, P.C.,allege as follows:
25 GENERAL ALLEGATIONS
26 1'.. Defendant Mountain Cascade, Inc, is a corporation organized under and j
27 by virtue of the laws of the State of Califomla with its principal place of business In the
i
28 County of Alameda.
!� COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 1 f
i
• 1 2. The events in issue occurred during the performance of a contract
2 entered into in the County of Alameda.
3 3. East Bay Municipal Utility District Is a publicly-owned utility formed under
4 the Municipal Utility District laws of the State of California with its headquarters in the
5 City of Oakland,.County of Alameda
-6 4. The events in issue occurredonor about Tuesday, November 9,2004, in
7 and adjacent to a 14-foot deep trench within the South Broadway Easement in a
8 residential neighborhood between Newell Avenue and Rudgear Road, in the City of
9 Walnut Creek, County of Contra Costa, State of California.
10 5. in and adjacent to the 14-foot trench, construction workers were building
11 a 694nch water pipeline,known as the Northern Pipeline,to transport water from
12 Walnut Creek to San Ramon.
13 6. East Bay Municipal Utility Districfs.general contract was initially awarded
14 on or about September 24,2002,to Modem Continental Construction of Cambridge,
15 Massachusetts. On or about May 28,2004, East Bay Municipal Utility District issued a
16 "Notice of Default Termination*to Modem Continental Construction.
17 7. On or about August 10,2004, East Bay Municipal Utility District awarded
18 its general contract to Mountain Cascade, Inc., a corporation organized and e)asting
19 under and by virtue of the laws of the State of California,with its principal place of
20 business in the City of Livermore, County of Alameda,State of California.
21 a. Mountain Cascade, Inc., in compliance with the provisions of the
22 Subletting and Subcontracting Fair Practices Act of the Public Contract Code of the r
23 State of California, listed and employed Matamoros Pipeline, Ina to perform welding on i
24 the 69-inch Northern pipeline.
25 9. The route of the 694nch Northam pipeline was to be generally parallel to,
i
26 east of and above a 104nch petroleum products pipeline.
s
27 10. On or about Tuesday, November 9,2004 Kinder Morgan, Incorporated
28 and Kinder Morgan Energy Partners LP owned and operated the 10-inch petroleum
I
I
COMPLAINT FOR PERSONAL lN.ri1RlE3 AND WRONGFUL DEATH 2
. I products pipeline for purposes of transporting gasoline approximately 60 miles from
Z Concord to San Jose.
3 11. Wrider Morgan, Incorporated is the general partner of Kinder Morgan
4 Energy Partners I.P.
5 12. The true names and capacities of Defendants Does 1 through 30 are
6 unknown to Plaintiffs and joined herein by said fictitious names. Plaintiffs are informed
7 and believe and thereon allege that each said Doe Defendant is negligently or
3 otherwise legally responsible In some manner for the events and happening herein
9 described, and negligently or otherwise legally caused the injuries and damages
10 claimed, such that Plaintiffs will amend this complaint to show their true names and
11 capacities when ascertained.
12 13. Plaintiffs are informed and believe,and thereon allege,that each of the
13 Defendants was,at all times relevant to this action, an agent,servant, employee,
14 partner,joint venturer,and/or alter-ego of the remaining Defendants, and/or that
15 Defendants'advice or encouragement to act operated as moral support and, in doing
16 the things herein alleged,was acting within the course and scope of that relationship.
17 Plaintiffs are further informed and believe, and thereon allege, that each of the
18 Defendants herein gave consent to, ratified, and/or authorized the acts alleged herein,
19 of each of the remaining Defendants,except as may be hereinafter otherwise
20 specifically alleged. i
.21 14. On or about Tuesday, November 9,2004, at about 1:30 p.m.,gasoline
22' escaped from the 10-Inch petroleum products pipeline. When it ignited and exploded,
23 several construction workers were Injured and five eventually died.
24 15. Among those who were injured and died was Victor Javier Rodriguez.
25 ("Decedent°),an employee of Matamoros Pipeline, Inc. i
26 16. On or about November 9,2004, plaintiff Juana Lilian Arias was the '
27 domestic partner of and was dependent upon Victor Javier Rodriguez
28
i
COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 3 i
. I
i
1 17. Plaintiffs Addana Cristina Rodriguez Arias, bom September 26,2001, the
2 daughter of Decedent, and Alegadra Stephanie Rodriguez-Arias, bom August 22,
3 2003, the daughter of Decedent,are the heirs and successors In Interest of Decedent.
4 18. Plaintiff Juana Lilian Arias,mother of Adriana Cristina Rodriguez Arias
S and Alegadra Stephanie Rodriguez-Arias, Is the duly appointed guardian ad litem of
6 Adriana Cristina Rodriguez Arias and Alegadra Stephanie Rodriguez-Arias, minors.
7 19. Prior to the death of Decedent, Plaintiffs Adriana Crlstina Rodriguez Arias.
8 and Alegadra Stephanie Rochguez Arias had the right to receive and were dependent
9 on their father for support and maintenance.
10 20. Prior to the death of Decedent, Plaintiff Allcla"Rodriguez,mother of Vidor
11 Javier Rodriguez,was dependent upon him for necessities of life.
12 21. As a legal result of the negligence and/or other conduct of Defendants,
13 and each of them, legally and/or proximately causing death to Decedent, Plaintiffs have
14 sustained injuries,damages, and/or losses including, but not limited to, loss"of love,
15 companionship,comfort, affection,society, solace, moral support, physical assistance,
16 financial support, contributions, and services of Decedent, in a sum to be ascertained
17 at the time of trial.
18 22. As a further and legal result of the negligence and/or other conduct of
19 Defendants, and each of them, legally and/or proximately causing death to Decedent,
20 Plaintiffs have incurred funeral and burial expenses in a sum to be proved at the time of
21 trial,which is the reasonable value of such services."
22 23. The above General Allegations are Incorporated by reference Into each of.
23 the following causes of action.
24
25
26
27
28
COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 4
1 • ,
1 . FIRST CAUSE 0•F ACTION
2 (Negligence Per Se)
3 (By Plaintiffs Against Defendants Kinder Morgan, Incorporated;
4 Kinder Morgan Energy Partners LP;and Does 1-20)
5 24. Defendants IGnder Morgan, Incorporated, IGnder Morgan Energy Partners
6 LP, and Does 1-20 were operators of a subsurface installation within the meaning of
7 Government Code§4216.
8 25. Said Defendants,and each of them,received notification of proposed
9 excavation work in accordance with Government Code§4216.2.
10 26. Said Defendants, and each of them,failed to locate and field mark the
11 approximate location which may be affected by the excavation, to the extent and
12 degree of accuracy that"the information is available either In the records of the operator
13 as determined through standard locating techniques other then excavation, and failed
14 to advise of the location of the operator's subsurface installations which may be
15 affected by the excavation, in accordance with Government Code§4216.3.
16 SECOND CAUSE OF ACTION
17 (Unfair Competition)
18 (By Plaintiffs Against Defendants I(inder Morgan, Incorporated;
19 Kinder Morgan Energy Partners LP; and Does 1-20)
20 27. Kinder Morgan,Incorporated is one of the largest midstream energy
21 companies In the country,operating more than 35,000 miles of natural gas and
22 products pipeline,
23 28. Kinder Morgan Energy Partners LP is the largest independent
24 ownerloperator of products pipelines in the country,transporting more than two million
25 barrels a day of gasoline,jet fuel, and diesel fuel and up to 7.8 billion cubic feet a day
26 of natural gas liquids,through more than ten thousand miles of pipelines, of which.
27 some 3,850 miles are in its Pacific pipeline system.
28
}
t COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 5 i
1 29. IGnder Morgan Energy Partners LP Is the nation's largest publicly traded
2 pipeline limited partnership in the United States In terms of market capitalization.
3 30. Kinder Morgan Energy Partners LP owns a 46% interest in the Cochin
4 Pipeline System, a 1900-mile natural gas.liquids pipeline operating between Alberta
5 and Ontario In Canada that transverses through seven states in the United States.
6 31. On July 16,2003, at approximately 5:30 a.m.,the USA portion of the
7 Cochin Pipeline System experienced a rupture and fire at a rural location approximately
8 75 miles east of Fargo, North Dakota.
9 32. On July 30,2003, a Kinder Morgan Energy Partners pipeline broke in a
10 Tucson subdivision. Gasoline sprayed more than fifty feet into the air, saturated five
11 homes being built,and contaminated soil and groundwater.
12 33. On April 29,2004, at approximately 7:00 p.m.,a Kinder Morgan Energy
13 Partners pipeline which transports gasoline,jet fuel,and diesel to Chico and
14 Sacramento, California and to Reno,Nevada, experienced a rupture not discovered
15 until April 30,2004,as a result of which approximately 1,000 barrels or 42,000 gallons
16 of diesel spilled into about 250 acres of Suisun Marsh,among the most important
17 wetlands in Northern California. Criticized for the delayed response, a managing agent
18 of Defendants Kinder Morgan, Incorporated and IGnder Morgan Energy Partners LP
19 replied°You can't cry wolf every time.you see an anomaly.'
20 34. On November 22,2004,for the second time In as many months, a
21 pipeline that transports gasoline from Colton and Barstow,California into Las Vegas,
22 Nevada experienced a rupture in a rural area near Baker, California. California
23 Highway Patrol officers on nearby Interstate 15 noticed a strong odor and closed the
24 freeway,which led to discovery of a Wto-60 foot gasoline vapor geyser.
25 35. Defendants Kinder Morgan Incorporated,Kinder Morgan Energy Partners
26 LP, and Does 1-20 were operators of a subsurface installation within the meaning of
27 Govemment Code§4216. !
28
t
COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 6 �
1 36. Said Defendants,and each of them,received notification of proposed
2 excavation work in accordance with Govemment Code§4216.2.
3 37. In 2003, Modem Continental Construction determined that another
4 segment of the petroleum products pipeline was approximately 13 feet from where it
5 was marked by Kinder Morgan, Incorporated, lender Morgan Energy Partners LP, and
6 Does 1-20.
7 38. Prior to November 9,2004, Kinder Morgan,.Incorporated, Kinder Morgan
8. Energy Partners LP,and Does 120 received notification of proposed excavation work
9 between pipe stations 100+00 and 101+00.
10 39. Said Defendants, and each of them, failed to locate and field mark the
11 approximate location which may be affected by the excavation,to the extent and
12 degree of accuracy that the information is available either in the records of the operator
13 as determined through standard locating techniques other than excavation,failed to
i4 advise of the location of the operator's subsurface Installations which may be affected
.15 by the excavation, in accordance with'Govemment Code§4216.3, and/or failed to
16 monitor the progress of the excavation.
17 40. Defendants IGnder Morgan, Incorporated and Kinder Morgan Energy
18 Partners LP customarily failed to monitor their facilities.
19 41. On account of inaccuracy in the work of marking and locating pipelines,
20 Defendants in advising excavators of the location of the pipelines which may be
21 affected by the excavation made statements and engaged in conduct which was
22 unlawfully deceptive and misleading to members of the public
23 42. Such activities were a substantial factor in directly causing harm to
24 Decedent and Plaintiffs. ,
25 43. Such harm to Decedent and Plaintiffs was of the kind that would be
26 anticipated as a result of inaccuracy in the work of,locating,field marking, and advising I
I.
27 excavators of the location of petroleum products pipelines transporting gasoline,
28 aviation fuels, and diesel through a residential neighborhood and community.
COMPLAIN'FOR PERSONAL INJURIES AND WRONGFUL DEATH 7 7
• 1 44. Kinder Morgan, Incorporated, Kinder Morgan Energy Partners LP, and
2' Does 1-20 possessed knowledge and experience in such field of work, and knew or
3 should have known that the work was likely to Involve this risk
4 45. Defendants Kinder Morgan Incorporated, IGnder Morgan Energy Partners
5 LP, and Does 1-20 thereby engaged in unfair competition, i.e., in an unlawful, unfair or
6 fraudulent business act or practice within the meaning of Section 17200 of the
7 Business and Professions Code..
8 THIRD CAUSE OF ACTION
9 (Strict Liability for Uitrahazardous Activities; CACI 460)
10 (By Plaintiffs Against Defendants Kinder Morgan incorporated;
11 Kinder Morgan Energy Partners LP; and Does 1-20)
12 46. Kinder Morgan, Incorporated is one of the largest midstream energy
13 companies in the country, operating more than 35,000 miles of natural gas and
X10 14 products pipeline..
15 47. Kinder Morgan Energy Partners LP is the largest independent
16 owner/operator of products pipelines in the country,transporting more than two million
17 barrels a day of gasoline,jet fuel,and diesel fuel and up to 7.8 billion cubic feet a day
18 of natural gas liquids,through more than ten thousand miles of pipelines, of which
19 some 3,850 miles are in its Pack pipeline system.
20 48. Kinder Morgan Energy Partners LP is the nation's largest publicly traded
.21 pipeline limited partnership in the United States in temps of market capitalization.
22 49. Defendants Kinder Morgan Incorporated, Kinder Morgan Energy Partners
23 LP, and Does 1-20 were engaged in activities including owning, operating, locating,
24 field marking,and monitoring excavation near petroleum products pipelines
25 transporting gasoline,jet fuel,diesel fuel and natural gas liquids.
t
26 50. Such activities create the existence of a high degree of risk of harm to
27 persons, land and chattels of others,create the likelihood that harm that results from it i
28 will be great, and are inappropriate to the surrounding residential neighborhoods, j
s . COMPLAINT FOR PERSONA!.INJURIES AND WRONGFUL DEATH 8 �
• 1
r
I schools, and communities where it was carried on, such that their value to such
2 communities is outweighed by their dangerous attributes.
3 51. Such activities were a substantial factor in causing harm to Decedent and
4 Plaintiffs.
5 52. Such harm to Decedent and Plaintiffs was of the kind that would be
6 anticipated as a result of the risk created by operating, locating,field marking, and
7 monitoring petroleum products pipelines transporting gasoline,jet fuel, diesel fuel, and
8 natural gas liquids through a residential neighborhood and community.
9 FOURTH CAUSE OF ACTION
10 (Peculiar Risk Doctrine; CAC 3708)
11 (By Plaintiffs Against Defendants Kinder Morgan Incorporated;
12 I(Inder Morgan Energy Partners LP; and Does 1-20)
13 53. The work of locating, marking, and monitoring excavation near petroleum
i
14 product pipelines in residential neighborhoods,and of advising excavators of the
15 location of such pipelines which may be affected by the excavation, is likely to involve a
16 special risk of harm to others.
17 54. Kinder Morgan, Incorporated,IGnder Morgan Energy Partners LP, and
18 Does 1-20 possessed knowledge and experience In such field of work,and knew or
19 should have known that the work was likely to involve this risk
20 55. An independent contractor to'which 10nder Morgan Incorporated, 10nder
21 Morgan Energy Partners d.P,and Does 1-20 delegated such work failed to use
22 reasonable care to take specific safety measures appropriate to the danger to avoid
23 this risk
24 56. Said Defendants, and each of them, received notification of proposed i
25 excavation work in accordance with Government Code§4216.2.
7
26 57: Said Defendants,and each of them,failed to locate and field mark the
27 approximate location which may be affected by the excavation, to the extent and
28 degree of accuracy that the Information is available either in the records of the operator
I
COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 9
1 as determined through standard locating techniques other than excavation, and failed
2 to advise of the location of the operator's subsurface installations which may be
3 affected by the excavation,In accordance with Government Code§4216.3.
4 58. Such failure of such independent contractor was a cause of harm to
5 Decedent and Plaintiffs.
6 FIFTH CAUSE OF ACTION
7 (Negligence Per Se)
8 (By plaintiffs Against Defendant Mountain Cascade, Inc. and Does 20-30)
9 59. Defendant Mountain Cascade, Inc,and Does 20-30 and each of them was
10 an"excavator"engaged in an"excavation'within the meaning of Government.Code
11 §4216.
12 60. Defendant Mountairi Cascade, Ina and Does 20.30 and each of them
13 failed to contact the appropriate regional notification center at least two working days
14 but not more than fourteen calendar days prior to conducting an excavation in an area
15 which is known or reasonably should be known to contain subsurface Installations,in
16 violation of Government Code§4216.2.
17 SIXTH CAUSE OF ACTION
18 (Negligence Per Se)
19 (By Plaintiffs Against Defendants Mountain Cascade, Inc, and Does 20-30)
20 61. Defendant Mountain Cascade, Ina and Does 20-30 and each of them was
-21 an"excavator'engaged In an"excavation'within the meaning of Government Code
22
§4216.-
23 62. Defendant Mountain Cascade, Ina and Does 20-30 and each of them {+
24 failed to determine the exact location of subsurface installations in conflict with the f
25 excavation by excavating with hand tools within the area of the approximate location of I
T
26 subsurface Installations as determined by field marking before using power-operated or
27. power-driven excavating or boring equipment in violation of Government Code
28 §4216.4.
cOMPLA{NT FOR PERSONAL INJURIES AND WRONGFUL DEATH 10
i
t
I SEVENTH CAUSE OF ACTION
2 (Premises Uability, CACI 1003)
3 (By Plaintiffs Against Defendants Mountain Cascade, Inc, and Does 2030)
4 63. Defendants Mountain Cascade, Inc.and Does 20-30 occupied and
5 controlled premises in which a 14-foot deep trench was being excavated.
6 64. The property contained a hidden condition or conditions which created an
7 unreasonable risk of harm.
8 .65. The occupier who controlled the property knew or should have known
9 about such condition or conditions.
10 66. The occupier who controlled the property failed to make reasonable
I i inspections to discover such condition or conditions.
12 67. The occupier who controlled the property failed to take reasonable
13 precautions to protect against the harm,or to give adequate warning to those likely to
( 14 be Injured by the harm.
15 68. Defendants Mountain Cascade, Inc. and Does 20-30 and each of them
16 failed to verify location of 10"petroleum lines prior to any construction between pipe
17 stations 100+00 and 101+00.
18 EIGHTH CAUSE OF ACTION
19 (Premises Uability,CACI 1009)
20 (By Plaintiffs Against Defendants Mountain Cascade, Inc. and Does 20-30)
21 69. Defendants Mountain Cascade, inc.and Does 20-30 occupied and
22 controlled premises in which a 14400t deep trench was being excavated.
23 70. An unsafe condition was created by or known to Mountain Cascade, Inc.
24 and Does 2030 and was not a known condition that Plaintiffs' Decedent's employer
25 Matamoros Welding was hired to correct or repair.
26 71. Mountain Cascade, Inc.and Does 2030 retained control over safety
27 conditions at the worksite and through their actions'or failure to take actions they
28 contributed to death of Decedent and Plalntiffs'injuries.
COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 1 f
r
I NINTH CAUSE OF ACTION
2 (Presumption of Negligence)
3 (By Plaintiffs Against All Defendants)
4 72. Such a fire and explosion is the kind of event which ordinarily does not
s happen unless someone is negligent.
6 73. Such fire and explosion was caused by an agency or instrumentality in
7 the exclusive control of the Defendants and over which the Defendants had the
s exclusive right of control.
9 74. Such fire and explosion was not due to any voluntary action or
10 contribution on the.part of the Plaintiffs'Decedent which was the cause of Plaintiffs'
11 Decedent's Injury and death..
12 TENTH CAUSE OF ACTION
13 (Negligent Undertaking)
14 (By Plaintiffs Against All Defendants)
15 75. At all times herein mentioned Defendants,and each of them, undertook
16 for consideration to render services,perform acts, and/or labor and/or safety
17 inspections in the course of which said Defendants knew or reasonably should have
is known precautions were necessary for the protection of others Including Decedent
19 working at said premises.
20 76. Defendants,and each of them, negligently rendered services,performed
21 ads,failed to furnish labor and reasonable safety inspections, and otherwfse failed to
22. exercise reasonable care in said undertaking.
23 77. Defendants Kinder Morgan Incorporated, Kinder Morgan Energy Partners
24 LP, and Does 1-20 were operators of a subsurface installation within the meaning of
25 Government Code§4216 who received notification of proposed excavation work in
26 accordance with Government Code§4216.2 and thereafter undertook but failed to
27 locate and field mark the approximate location which may be affected by the
28 excavation,to the extent and degree of a=racy that the information Is available either
-
COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 12
f
i
I in the records of the operator as determined.through standard locating techniques
2 other than excavation,and failed to advise of the location of the operator's subsurface
3installations which may be affected by the excavation, in accordance with Government
4 Code§4216.3.
5 78. Defendants Mountain Cascade, Inc. and Does 20-30 and each of them
6 was an*excavator'engaged in an'excavatlon"within the meaning of Government
7 Code§4216,and undertook but failed to determine the exact location of subsurface .
8 installations in conflict with the excavation by excavating with hand tools within the area
9 of the approximate location of subsurface installations as determined by Meld marking
10• before using power-operated or power-driven excavating or boring equipment in .
11 violation of Government Code§4216.4.
12 79. Defendants,and each of them,thereby Increased the risk of harm to
13 others, Including Decedent,who were foreseeably upon said premises.
j 14 ELEVENTH CAUSE OF ACTION
15 (Intentional Misrepresentation Causing Physical Harm by Plaintiff Juana Lilian Arias as
.16 Guardian ad Litem for the Suocessors In interest of Victor Rodriguez, Deceased;
17 Against Defendants Krnder Morgan, Incorporated; I(Inder Morgan Energy Partners LP;
18 Mountain Cascade, Inc,;and Does 1-30)
19 80. Defendants,and each of them,knew that construction workers were
20 excavating a trench and building a 69-inch pipeline to transport water from Walnut
21 Creek to San Ramon, in accordance with a written general contract between East Bay
22 Municipal Utility District and Mountain Coscade, Inc.
23 81. Defendants,and each of them, knew that the route of the 694nch water
24 pipeline was to be generally parallel to,east of and above a 10-inch petroleum
25 products pipeline owned and operated by Kinder Morgan, Incorporated and/or ICrnder
26 Morgan Energy Partners LP for transporting gasoline under high pressure
27 approximately 60 miles from Concord to San Jose.
28
INJ
COMPLAINT FOR PERSONAL URIES AND WRONGFUL DEATH 13
s
•
1 82. Defendants Kinder Morgan, Incorporated, 10nder Morgan Energy Partners
2 LP,and Does 1-20 were operators of a subsurface installation within the meaning of
3 Goverment Code§4216.
4 83. Kinder Morgan, Incorporated Is the general partner of Mnder Morgan
5 Energy Partners LP.
6 • 84. Kinder Morgan Energy Partners LP Is the largest independent
7 owner/operator of products pipelines in the country, transporting more than two million
8 barrels a day of gasoline,jet fuel,and diesel fuel and up to 7.8 billion cubic feet a day
9 of natural gas liquids,through more than ten thousand mites of pipelines, of which
10 some 3,850 miles are in Its Pacific pipeline system.
11 85. Kinder Morgan Energy Partners LP is the nation's largest publicly traded
r
12. pipeline limited partnership in the United States in terns of market capitalization.
13 86. Defendants,and each of them, knew that Kinder Morgan Energy Partners
14 LP owns a 45%interest in the Cochin Pipeline System, a 1900-mile natural gas liquids
15 pipeline operating between Alberta and Ontario in Canada that transverses through
16 seven states in the United States.
17 87. Defendants,and each of them,knew that on July 16, 2003, at
Is approximately 6:30 a.m.,the USA portion of the Cochin Pipeline System experienced a
19 rupture and fire at a rural location.approximately 75 miles east of Fargo, North Dakota.
20 88. On July 30,2003,a Kinder Morgan Energy Partners pipeline broke in a
21 Tucson subdivision. Gasoline sprayed more than fifty feet into the air,saturated five
22 homes being built,and contaminated soil and groundwater.
23 89. On April 29,2004, at approximately 7:00 p.m, a Fender Morgan Energy
24 Partners pipeline which transports gasoline,jet fuel,and diesel to Chico and
25 Sacramento, California and to Reno, Nevada,experienced a rupture not discovered
26 until April 30,2004,as a result of which approximately 1,000 barrels or 42,000 gallons
27 of diesel spilled into about 250 acres of Suisun Marsh,among the most important
28 wetlands in Northern Califomia. Criticized for the delayed response, a managing agent
COMPLAINT FOR PERSONAL INJURIES AND NVRONGFUL DEATH 14
I of Defendants tinder Morgan,.Incorporated and Kinder Morgan Energy Partners LP
2 replied"You can't cry wolf every time you see an anomaly.'
3 90. On November 22,2004,for the second time in as many months, a
4 pipeline.that transports gasoline from Cotton and Barstow, California into i.as Vegas,
5 Nevada experienced a rupture in a rural area near Baker, California. California
6 Highway Patrol officers on nearby Interstate 15 noticed a strong odor and dosed the
7 freeway,which led to discovery of a 50 to-60 foot gasoline vapor geyser.
8 91. Defendants, and each of them,knew that East Bay Municipal Utility
9 District's contract with its general contractor required compliance with all applicable
10 statutes and occupational and health standards,rules,regulations, and orders.
11- 92 Defendants, and each of there,knew that to guard against extreme risk of
12 injury to persons and property,East Bay Municipal Utility Districts contract with Its
13 general contractor specified that.work along South Broadway is adjacent to a high
14 pressure petroleum pipeline owned by IQnder Morgan, incorporated;that construction
15 activities should be coordinated with Larry Hoster,Manager Pipeline Maintenance,
16 IQnder Morgan, Incorporated;that the contractor shall notify all owners of utilities when
17 his work is in progress;that the contractor is responsible for having all underground
18 utilities and structures located in advance of excavation;that the contractor notify all
19 known owners of underground utilities in the area of proposed work and Underground
20 Service Alert,800-642-2444 at least two working days before the start of actual
21 excavation;that the contractor shall determine the exact location•of existing utilities
27, whose approximate locations are shown on drowings; that contract drawings depicted a
23 bend in the 10"petroleum pipeline between pipe stations 100+00 and 101+00;that the
24 contractor shall probe carefully to determine the exact location of utility, and hand
25 excavate when necessary to avoid damages;that the contractor shall verify location of
26 10"petroleum lines prior to any construction between pipe stations 100+00 and
27. 101+00; and that hand excavation is required within 24"on either side of the exterior
28 surface of any underground utility.
COMPLAINT FOR PERSONAL INMES AND WRONGFUL DEATH 15
1 93. Said Defendants, and each of them,were aware of the responsibility to I
2 provide notification of proposed excavation work in accordance with Government Code
3 §4216.2, to locate and field mark subsurface installations which may be affected in
4 accordance with Government Code§4216.3,and to determine the exact location of
s subsurface installations by hand excavating in accordance with Government Code
6 §4216.4.
7 94. Defendants,and each of them,knew that operating, locating,field
s marking and.ekcavating new petroleum products pipelines transporting gasoline,jet
9 and diesel fuels created the existence of a special,high degree of risk of harm to
10 persons,land and chattels of others,knew the likelihood that harm that results from.it
I l will be great,and knew the petroleum products pipeline was inappropriate to the
12 surrounding residential neighborhood,school,and community where it was located.
13 95. Defendants,and each of them,knew that Matamoros Pipeline, Inc., a
14 welding subcontractor to East Bay Municipal Utility Districks general contractor, and its
f 15 employees would rely for their safety Y defendants compliance with statutory,
16 regulatory, and contract terms including but not limited to locating,field marking,and
17 hand excavating near the petroleum products-pipeline.
18 96. Defendants,and each of them,knew that East Bay Municipal Utility
19 District's general contract was initially awarded to Modern Continental Construction of
20 Cambridge,Massachusetts.
21 . 97. Defendants,and each of them,knew that in 2003 Modem Continental
22 Construction determined that a segment of the petroleum products pipeline was
23 approximately 13 feet from where it was marked by lender Morgan, Incorporated,
24 lander Morgan Energy Partners LP and Does 1-20.
25 98. Defendants,and each of them, knew that in May 2004 East Bay Municipal
26 Utility District terminated its general contact with Modem Continental in part for working
27 too slowly.
28
COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEA71-1 1 f3
' a
1 99. Defendants,and each of them, knew that prior to November 9,2004,
2 Modem Continental Construction objected to termination of its general contract with
3 East Bay Municipal Utility District,expressed concem about the petroleum products
4 pipeilne along South Broadway,filed suit for breach of contract,and alleged its delays
5 were due in part to problems with how well the 10-Inch petroleum products pipeline was
6 located on general contract documents and plans.
7 100. Defendants,and each of them,knew that prior to November 9,2004,East
8 Bay Municipal Utility District awarded its general contract to Mountain Cascade, Inc., a
9 corporation or other business entity organized pursuant to the laws of the State of
10 Callfomia with its principal place of business in the City of Livermore, County of
11 Alameda, State of California.
12 101. Defendants Mountain Cascade, Inc. and Does 20.30, and each of them,
13 was an"excavator"engaged In an"excavation"within the meaning of Government
14 Code§4216.
IS 102 Defendants, and each of them,knew that Mountain Cascade, Inc.
16 advertised that"we routinely take on rough projects that our competitors shy away from
• 17 and tum them into profit."
18 103. Defendants, and each of them, knew that Mountain Cascade, Inc. has had
19 two deaths in the last five years,the most recent being in March 2004 when a worker
20 was gushed white unloading pipe.
21 104. Defendants,and each of them, made to East Bay Municipal Utility District,
22 Decedent's employer Matamoros pipeline, Inc., Decedent's coworkers, and Decedent,
23 representations of material fact as follows:
24 a. Defendants IClnder Morgan, Incorporated, IGnder Morgan Energy Partners
25 LP,and Does 120 placed field marking devices so as to represent the location of their
26 petroleum products pipeline;
27 b. Defendants Kinder Morgan, Incorporated,IGnder Morgan Energy Partners
28 LP, and Does 1-20 stated that field marking devices accurately represented the
s
COMPLAINT FOR PERSONAL.INJURIES AND WRONGFUL DEATH 17
- a
.1 location of their petroleum products pipeline,that excavators need only follow the field
2 marking devices to avoid conflict with their petroleum products pipeline, and that
3 additional locating or monitoring by said Defendants was unnecessary;
4 a Defendants Mountain Cascade, Inc, and Does 20-30 by using
5 power-operated or power-driven excavating or boring equipment and otherwise, stated
6 they had by excavating with hand tools determined the exact location of the petroleum
7 products pipeline.
8 105. These representations were in fact false,and the truth was as follows:
9 a. The petroleum products pipeline was not where Kinder Morgan,
.10 incorporated, Kinder Morgan Energy Partners LP, and Does 1-20 represented it to be;
I I b. Kinder Morgan, incorporated, Kinder Morgan Energy Partners LP, and
12 Does 1-20, and each of them, had failed to locate and field mark the approximate
13 location which may be affected by the excavation,to the extent and-degree of accuracy
14, that.the information its available either in their own records or through standard locating .
15 techniques other than excavation; -
16 a Defendants, and each of them,for their financial benefit had knowingly
17 failed to employ personnel and/or employed unfit personnel to locate and mark the
18 petroleum products pipeline;
19 d. The exact location of the petroleum products pipeline,not where field
20 .marking indicated it to be,had not been determined by excavating with hand tools;and
21 e. The exact location of the petroleum products pipeline, not where field
22 marking indicated it to be,was determinable from records,drawings, and contract
23. documents in the possession of Defendants tender Morgan, Incorporated, lander
24 Morgan Energy Partners LP,Mountain Cascade, Inc.and Does 1-30.
25 f. The records,drawings,and contract documents In the possession of
26 Defendants depicted a bend in the 10"petroleum pipeline between pipe stations
27 100+00 and 101+00.
28.
i COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 18 i
ti
1 106. When Defendants, and each of them,made the above representations,
2 said Defendants knew them to be false, had no reasonable ground for believing the
3 representations were true, and knew they had not the knowiedge which they professed.
4 107. Defendants, and each of them,made the representations with the intent
S that the representations be communicated to Decedent's employer, Decedent's
6 coworkers, and Decedent,that the representations induce Decedent's employer,
7 Decedent's coworkers,and Decedent to work and act in justifiable reliance upon the
8 representations,which actions Defendants knew Involved an unreasonable risk of
9 physical harm to Decedents coworkers and Decedent
10 108. Decedent's employer, Decedents coworkers and Decedent received
11 Defendants'misrepresentations,and justifiably relied upon them.
12 109. Defendants,and each of them, in failing to notify,failing to mark even the
13 approximate location,and failing to determine the exact location of the petroleum
14 products pipeline, before excavating with power-operated or power-driven excavating
i5 or boringuipment,acted Intentional and despicably and with willful and conscious
�{ Intentionally �P IY
16 disregard of the safety of workers In the vicinity.
17 110. Defendants Kinder Morgan, Incorporated, Kinder Morgan Energy Partners
18 LP,Mountain Cascade, ina, and Does 1-30 had advance knowledge of the unfitness of
19 agents and employees,including but not limited to those who placed field marking
20 devices,those who represented that excavators need only follow field marking devices
21 to avoid conflict with the petroleum products pipeline, and those who failed to
22 determine its exact location from records,drawings,contract documents in their
23 possession, or excavation with hand tools,and employed them with conscious
24 disregard for the rights and safety of others.
25 111. Defendants finder Morgan, Incorporated, Kinder Morgan Energy Partners
26 LP,Mountain Cascade, Inc.,and Does 1.30,and each of them, through officers,
27 directors and/or managing agents thereby authorized said acts of employees and
28 thereafter ratfied said acts by continuing to employ them, by failure to criticize,
COMPLAIN'FOR PERSONAL INJURIES AND WRONGFUL.DEATH 19
i
I censure,terminate, suspend or take other remedial action against them,by interfering
2 with attempts by regulatory_authorities Including-but not limited to Cal-OSHA to
3 interview them, and by providing them with legal counsel so as to defend their conduct
4 112. The above-dewibed conduct of Defendants i(inder Morgan,
5 Incorporated, Kinder Morgan Energy Partners,LP, Mountain Cascade, inc. and Does
6 .1-30, and each of them,which Includes Intentional disregard of safety standards and
7 acting in a manner calculated to Interfere with or deceive regulatory authorities,for
8 Defendants'financial benefit,was despicable and carried on with a willful and
9 conscious disregard for the rights and safely of others.
10 113. The above-described conduct of Defendants hinder Morgan,
11 Incorporated,Kinder Morgan Energy Partners, LP,Mountain Cascade, Inc.and Does
12 1-30, and each of them,which includes Intentional disregard of safety standards and
13 acting in a manner calculated to stonewall or deceive regulatory authorities,for
14 Defendants'financial benefit, subjected persons to cruel and unjust hardship in
15 conscious disregard for such persons'rights.
16 114. Asa proximate result of said conduct,said reliance thereon,and of the
17 injuries sustained, Plaintiffs are entitled to the protection of Civil Code§3294 and to an
18 award of exemplary and punitive damages in excess of the jurisdictional minimum of
19 this Court.
20 ER&YER FOR RELIEF
21 WHEREFORE, Plaintiffs pray for judgment against Defendants,and each of
22 them,as follows:
23 1. For general damages in excess of the jurisdictional minimum of this Court,
24 2. For funeral, burial and Incidental expenses according•to proof;
25 3. For loss of support and related economic losses according to proof;
26 4. For the Second Cause of Action only,to disgorge profits from unlawful
27 business acts or practices;
28
j
COMPLAIN'FOR PERSONAL INJURIES AND WRONGFUL DEATH 20 }
i
1 5. For the Eleventh Cause of Acdon'only,for damages for the sake of
2 example and by way of punishing the Defendants named therein, pursuant to Civil
3 Code§3294,
4 S. For prejudgment Interest and attorney's fees according to law,
5 7. For costs of this suit;and
6 S. For such other and further relief as is proper.
7 DATED: January2W5 BOXER$<GERSON, LLP
9 By.
JOHN M.ANTON
Attorneys for Plaintiffs
l0
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eo 14
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:; COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 21 `
�� - • +� � i ��® vii
'3672164
1 JOHN M.ANTON, State Bar No.54888
WILLIAM E.LOMBARDINI,State Bar No. 191464
2 BOXER&GERSON,LLP
3 Frank Ogawa Plaza I
3 Rotunda Building Suite 500
Oakland,Cal&;;m 94612 ALAMEDA COUNTY
5 4 Telephone: J510 835-8870
Facsimile: 5.1 835-0416 ,IAN 2 8 2005
ANTONIO R 17,State Bar No. 155659 r• -•-TMR OUPERIPF1 COURT
6 -CONCEPCION E.LOZANO-BATISTA, State Bar No.227227
WEINBERG, ROGER&ROSENFELD, P.C. --
Deputy
7 A Professional Corporation
180 Grand Avenue,Suite 1400
•
. 8 Oakland,California 94612-3752
Telephone: 510 839-6600
9 Facsimile: 510 891-0400 .
10 Attorneys for Plaintiffs -
11
SUPERIOR COURT OF THE STATE OF CALIFORNIA.
12
COUNTY OF ALAMEDA
13
MARILU ANGELES, Individually and as CASE NO. 0
14guardlan ad litem for METZt YAREL
HERNANDEZ and EMILIN COMPLAINT FOR PERSONAL
15 HERNANDEZ, minors, INJURIES AND WRONGFUL DEATH
16 Plaintiffs,
17 vs.
18 KINDER MORGAN, INCORPORATED;
KINDER MORGAN ENERGY -
19 PARTNERS LP;MOUNTAIN
CASCADE, INC-DOES 1-30; and
20 MARIEL HERNA� DEZ,
21 Defendants.
22
23
24
25
26
27
28
S
COMPLAINT FOR PERSONAL INJURIE AND WRONGFUL DEATH
I Plaintiffs,by and through their attorneys Boxer&Gerson, LLP, and Weinberg,
2 Roger&Rosenfeld, P.C.,allege as follows:
3 GENERAL ALLEGATIONS
4 1. Defendant Mountain Cascade, Inc. is a corporation organized under and
5 by virtue of the laws of thiState of California with its prindpal place of business in the
6 County of Alameda-
7 .2. The events in issue occurred during the performance of a contract
8 entered Into in the County of Alameda.
9 3. East Bay Municipal Utility District is a publicly-owned utility formed under
10 the Municipal Utility District laws of the State of California with its headquarters in the
11 City of Oakland,County of Alameda.
12 4. The events in issue occurred on or about Tuesday, November 9, 2004,in
13 and adjacent to a 1446ot deep trend within the South Broadway Easement in a
14 residential neighborhood between Newell Avenue and Rudgear Road, in the City of
15 Walnut Creek, County of Contra Costa,State of California.
16 5. In and adjacent to the 14-foot trench,construction workers were building
17 a 69-inch water pipeline,known as the Northern Pipeline,to transport water from
18 Walnut Creek to San Ramon.
19 6. East Bay Municipal Utility District's general contract was initially awarded
.. 20 on or about September 24,2002,to Modem Continental Construction of Cambridge,
21 Massachusetts. On or about May.20,2804, East Bay Municipal Utility District issued a
22 °Notice of Default Termination"to Modem Continental Construction.
23 7. On or about August 10,2004, East Bay Municipal Utility District awarded
24 its general contract to Mountain Cascade, Inc., a corporation organized and existing
25 under and by virtue of the laws of the State of Cai'ifomia,with its principal place of
26 business in the City of Livermore,County of Alameda, State of California.
27 8. Mountain Cascade, Inm, in compliance with the provisions of the
28 Subletting and Subcontracting Fair Practices Act of the Public Contract Code of the
.� COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 2
i
i
1.
I State of California, listed and employed Matamoros Pipeline, Inc.to perform welding on
2 the 69-inch Northern pipeline.
3 9. The route of the 694nch Northern pipeline was to be generally parallel to,
4 east of and above a 10-inch petroleum products pipeline.
. 5 10. On or about Tuesday, November 9,2004 Kinder Morgan, Incorporated
6 and ICrnder Morgan Energy Partners LP owned and operated the 10-inch petroleum
7 products pipeline for purposes of transporting gasoline approximately 60 miles from
8 Concord to San Jose.
9 11. Kinder Morgan, Incorporated Is the general partner of i6nder Morgan
.10 Energy Partners LP.
11 12. The true names and capacities of Defendants Does 1 through 30 are
12 unknown to Plaintiffs and joined herein by said fictitious names. Plaintiffs are informed
13 and believe and thereon allege that each said Doe Defendant is negligently or
14 otherwise legally responsible in some manner for the events and happening herein
15 described, and negligently or otherwise legally caused the injuries and damages
16 claimed, such that plaintiff will amend this complaint to show their true names and
17 capacities when ascertained.
18 13. Plaintiffs are informed and believe,and thereon allege,that each of the
19 Defendants was,at all times relevant to this action,an agent,servant, employee,
20 partner,joint venturer,andfor alter-ego of the remaining Defendants arKYor that
21 Defendants'advice or encouragement to ad operated as moral support and,in doing
22 the things herein alleged,was acting within the course and scope of that relationship.
23 Plaintiffs are further Informed and believe,and thereon allege,that each of the
24 Defendants herein gave consent to,ratified,andfor authorized the acts alleged herein,
25 of each of the remaining Defendants,except as may be hereinafter otherwise
26 speciflcaliy alleged.
27
28
ICOMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 3
1 14. On or about Tuesday,November 9,2004,at about 1:30 p.m.,gasoline
2 escaped from the 10-inch petroleum products pipeline. When it ignited and exploded,
.3 several construction workers were irJured and five eventually,died.
4 15. Among those who were injured and died was Israel Hernandez
5 CDecedenr),an employee of Matamoros Pipeline, Ina
6 16. On or about November 9,2004, plaintiff Marilu Angeles was the domestic
7 partner of and was dependent upon Israel Hernandez
8 17. Plaintiffs Metzi Yarel Hernandez, born January 16,2001,the daughter*of
9 Decedent and Emilin Hernandez, born January 12,2003,the daughter of Decedent,
.10 and Defendant Martel Hernandez,born on or about 1987,the daughter of Decedent,
11 ars the heirs and successors in interest of Decedent.
12 18. Plaintiff Marilu Angeles,mother of Metzi Yarel Hernandez and Emilin
13 Hernandez, is the duly appointed guardian ad litem of Metz!Yarel Hernandez and
14 Emilin Hernandez,minors.
15 19. Prior to the death of Decedent,Plaintiffs MeW Yarel Hernandez and
16 Emilin Hernandez had the right to receive and were dependent on their father for .
17 support and maintenance.
1s 20. As a legal result of the negligence and/or other conduct of Defendants,
19 .and each of them, legally and/or proximately causing death to Decedent,Plaintiffs have
20 sustained injuries,damages,and/or losses including, but not limited to,loss of love,
21 companionship,comfort,affection,society,solace,moral support,physical assistance,
22 financial support,contributions,and services of Decedent, in a sum to be ascertained
23 at the time of trial.
24 21. As a further and legal result of the negligence and/or other conduct of
25 Defendants, and each of them, legally and/or proximately causing death to Decedent,
26 Plaintiffs have incurred funeral and burial expenses in a sum to be proved at the time of
27 trial,which!s the reasonable value of such services.
28
COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 4
1 22. The above General Allegations are Incorporated by reference Into each of
2 the following causes of action.
3 FIRST CAUSE OF AE10N
4 (Negligence Per Se)
5 (By Plaintiffs Against Defendants Kinder Morgan, Incorporated;
6 I(inder Morgan Energy Partners LP;and Does 1-20)
7 23. Defendants I(Inder Morgan, Incorporated, Kinder Morgan Energy Partners
8 LP, and Does 1-20 were operators of a subsurface installation within the meaning of
9 Government Code§4216.
10 24. Said Defendants, and each of them,received notification of proposed
11 excavation work in accordance with Government Code§4216.2.
12 25.- Said Defendants,and.each of them,failed to locate and field mark the
13 approximate location which may be affected by the excavation,to the extent and
14 degree of accuracy that the information is available either in the records of the operator
15 as determined through standard locating techniques other than excavation,and failed
16 to advise of the location of the aperetor's subsurface installations which may be
17 affected by the excavation, In accordance with Government Code§4216.3.
18 SECOND CAUSE OF ACTION
19 (Unfair Competition)
20 (By Plaintiffs Against Defendants 10nder Morgan, Incorporated;
21 Kinder Morgan Energy Partners LP;and Does 120)
22 26. 10nder Morgan, Incorporated is one of the largest midstream energy
23 companies in the country, operating more than 35,000 miles of natural gas and
24 products pipeline.
25 27. Kinder Morgan Energy Partners LP is the largest independent
26 ownerloperator of products pipelines in the country,transporting more than two million
27 barrels a day of gasoline,jet fuel,and diesel fuel and up to 7.8 billion cubic feet a day
28
COMPLAINT FOR PERSONAL,INJURIES AND WRONGFUL DEATH 5
I of natural gas liquids,through more Um.ten thousand miles of pipelines,of which
2 some 3,850 miles are in its Pacific pipeline system.
3 28. l4nder Morgan Energy Partners LP Is the nation's largest publicly traded
4 pipeline limited partnership In the United States in temps of market capitalization.
5 29. Kinder Morgan Energy Partners LP owns a 45%interest in the Cochin
6 Pipeline System,a 1900-mile natural gas liquids pipeline operating between Alberta
7 and Ontario in Canada that transverses through seven states.in the United States.
8 30. On.July.16,2003,at approximately 5:30 a.m..the USA portion of the
9 Cochin Pipeline System experienced a rupture and fire at a ural-location apprwdmately
10 75 miles east of Fargo,North Dakota.
11 .31. On July 30,2003,a Kinder Morgan Energy Partners pipeline broke in a
12 Tucson subdivision. Gasoline sprayed more than fifty feet into the air, saturated five
13 homes being built,and contaminated soil and groundwater.
14 32. On April 29,2004, at approximately 7:00 p.m.,a Kinder Morgan Energy
15 Partners pipeline which transports gasoline,jet fuel,and diesel.to Chico and
16 Sacramento, California and to-Reno, Nevada,experienced a rupture not discovered
17 until April 30,2004,as a result of which appro)dmately 1,000 barrels or.42,000 gallons
18 of diesel spilled into about 250 acres of Suisun Mand, among the most important
19 wetlands in Northern Califomia. Criticized for the delayed response,a managing agent
20 of Defendants Kinder Mogan, Incorporated and Kinder Morgan Energy Partners LP'
21 replied"You can't cry wolf every time you see an anomaly.'
22 33. On November 22,2004;for the second time in as many months,a
23 pipeline that transports gasoline from Colton and Barstow, Califomia into Las Vegas,
24 Nevada experienced a rupture in a rural area near Baker,Califomia. California
25 Highway Patrol officers on nearby interstate 15 noticed a strong odor and closed the
26 freeway,which led to discovery of a 504o-60 Boot gasoline vapor geyser.
27
28
COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 6
1 34. Defendants Kinder Morgan Incorporated, Kinder Morgan Energy Partners
2 I-P,and Does 1-20 were operators of a subsurface installation within the meaning of
3 Government Code§4216.
4 35. Said Defendants, and each of them,received notification of proposed
5 excavation work in accordance with Government Code§4216.2.
6 36. In 2003, Modem Continental Construction determined that another
7 segment of the petroleum products pipeline was approximately 13 feet from where it
8 was marked by Kinder Morgan, rated,'Kinder Morgan Energy Partners LP,and
9 Does 120.
10 37. Prior to November 9,2004,Kinder Morgan, Incorporated, Kinder Morgan
11 Energy Partners LP,and Does 120 received notification of proposed excavation work
12 between pipe stations 100+00.and 101+00.
13 38. Said Defendants, and each of them,failed to locate and field mark the
• 14 approximate location which may be affected by the excavation,to the extent and
15 degree of accuracy that the information is available either in the records of the operator
16 as determined through standard locating techniques other than excavation,failed to
17 advise of the location of the operates subsurface Installations which may be affected
18 by the excavation,in accordance with Government Code§4216.3,and/or failed to
19 monitor the progress of the excavation.
20 39. Defendants Kinder Morgan, Incorporated and finder Morgan Energy
21 Partners LP customarily failed to monitor their facilities.
22 40. On account of Inaccuracy In the work of maWJng and locating pipelines,
23 Defendants in advising excavators of the location of the pipelines which may be.
24 affected by the excavation made statements and engaged in conduct which was
25 unlawfully deceptive and misleading to members of the public
26 41. Such activities were a substantial factor in directly causing harm to
27 Decedent and Plaintiffs.
28
i.�
COMPLAINT FOR PERSONAL.INJURIES AND WRONGFUL DEATH 7
1 42. Such harm to Decedent and Plaintiffs was of the kind that would be
2 anticipated as a result of inaccuracy in the work of, locating,field marking, and advising
3 excavators of the location of petroleum products pipelines transporting gasoline,
4 aviation fuels, and diesel through a residential neighborhood and community.
5 43. Fonder Morgan, Incorporated, Kinder Morgan Energy Partners LP, and
6 Does 1-20 possessed knowledge and experience In such field of work, and knew or
7 should have known that the work was likely to involve this risk,
8 44. Defendants Kinder Morgan Incorporated, Kinder Morgan Energy Partners
9 LP, and Does 1-20 thereby engaged in unfair competition, I.e.,in an unlawful,unfair or
10 fraudulent business act or practice within the meaning of Section 17200 of the
11 Business and Professions Code.
12 THIRD CAUSE OF ACTION
13 (Strict Liability for Uttrahazardous Activities;CACI 460).
14 (By Plaintiffs Against Defendants Kinder Morgan Incorporated;
15 Fender Morgan Energy Partners LP;and Does 1-20)
16 45. Finder Morgan, Incorporated is one of the largest midstream energy.
17 companies in the country,operating more than 35,000 miles of natural gas and
18 products pipeline.
19 46. lender Morgan Energy Partners LP is the largest independent
20 owner/operator of products pipelines in the country,transporting more than two million
21 barrels a day of gasoline,jet fuel,and diesel fuel and up to 7.8 billion cubic feet a day
22 of natural gas liquids,through more than ten thousand miles of pipelines, of which
23 some 3,850 miles are in its Pacific pipeline system.
24 47. Fender Morgan Energy Partners LP is the nation's largest publicly traded
25. pipeline limited partnership in the United States In terms of market capitalization.
26 48. Defendants iQnder Morgan Incorporated;lender Morgan Energy Partners
27 LP, and Does 1-20 were engaged in activities including owning, operating, locating,
28
COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 8
I field marking,and monitoring excavation near petroleum products pipelines
2 transporting.gasoline,jet fuel,diesel fuel and natural gas liquids.
3 49. Such activities create the existence of a high degree of risk of harm to
4 persons, land and chattels of others,create the likelihood that harm that results from it
5 will be great, and are inappropriate to the surrounding residential neighborhoods,
6 schools,and communities where it was carried on, such that their value to such
7 communities is outwelghed by their dangerous attributes.
8 60. Such activities were a substantial factor In causing harm to Decedent and
9 Plaintiffs.
10 51. Such harm to Decadent and Plaintiffs was of the kind that would be
ii anticipated as a remit of the risk created by operating, locating,field marking, and
12 monitoring petroleum products pipelines transporting gasoline,jet fuel,diesel fuel,and
13 natural gas liquids through a residential rieighborhood and community.
14 FOURTH CAUSE OF ACTION
15 (Peculiar Risk Doctrine;CAC 3708):
16 (By Plaintiffs Against Defendants i(Inder Morgan Incorporated;
17 I(Inder Morgan Energy Partners LP;and Does 120)
is 62 The work of locating, marking,and monitoring excavation near petroleum
19 product pipelines in residential neighborhoods,and of advising excavators of the
20 location of such pipelines which may be affected by the excavation,is likely to involve a
21 special risk of harm to others.
22 53. IOnder Morgan, Incorporated, ICrnder Morgan Energy Partners LP, and
23 Does 120 possessed knowledge and experience in such field of work,and knew or
24 should have known that the work was likely to Involve this risk
25 54. An independent contractor to which 10nder Morgan Incorporated, IGnder
26 Morgan Energy Partners LP,and Does 1-20 delegated such work failed to use
. 27 reasonable care to take specific safety measures appropriate to the danger to avoid
28 this risk
COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 9
1. 55. Said Defendants,and each of them, received notification of proposed
2 excavation work in accordance with Government Code§4216.2.
3 56.. Said Defendants,and each of them,failed to locate and field mark the
4 approximate location which may be affected by the excavation,to the extent and
5 degree of accuracy that the Information is available either In the records of the operator
6 as determined through standard locating techniques other than excavation,and failed
7 to advise of the location of the operator's subsurface installations which may be
8 affected by the excavation, In accordance with Government Code§4216.3.
. 9 57. Such failure of such independent contractor was a cause of harm to
10 Decedent and Plaintiffs.
11 FIFMCAUSE OF ACTION
12 (Negligence Per Se)
13 (By Plaintiffs Against Defendant Mountain Cascade, Inc,and Does 20-30)
14 58. Defendant Mountain Cascade,Inc, and Does 20-30 and each of them was
15 an`excavator°engaged in an"excavation'within the meaning of Government Code
16 §4216.
17 59. Defendant Mountain Cascade, Inc,and Does 20-30 and each of them
18 failed to contact the appropriate regional notification center at least two working days
19 but not more than fourteen calendar days prior to conducting an excavation In an area
20 which is known or reasonably should be known to contain subsurface installations, In
21 violation of Government Code§4216.2
22 SDRH CAUSE OF ACTION
23 (Negligence Per Se)
24 (By Plaintiffs Against Defendants Mountain Cascade, Ina and Does 20.30)
25 60. Defendant Mountain Cascade, Inc.and Does 20-30 and each of them was
26 an`excavator'engaged in an°excavation'within the meaning of Government Code
27 §4216.
28 .
COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 10
1 61. Defendant Mountain Cascade, Ina and Does 20=30 and each of them
2 failed to determine the exact location of subsurface installations In conflict with the
3 excavation by excavating with hand tools within the area of the approximate location of
4 subsurface installations as determined by field marking before using power-operated or
5 power-driven excavating or boring equipment in violation of Government Code
6 §4216.4.
7 SEVENTH CAUSE OF ACTION
8 (Premises Liability,CACI 1003)
9 (By Plaintiffs Against Defendants Mountain Cascade, Inc. and Does 200)
10 62. Defendants Mountain Cascade, Inc. and Does 20-30 occupied and
it controlled premises in which a 14-foot deep trench was being excavated.
12 63. The property contained a hidden condition or conditions which created an
13 unreasonable risk of harm.
14 64. The occupier who controlled the property knew or should have known
15 about such condition or conditions.
16 65. The occupier who controlled the property failed to make reasonable
17 inspections to discover such condition or conditions.
1s 66. The occupier who controlled the property failed to take reasonable
19 precautions to protect against the harm,or to give adequate warning to those likely to
20 be injured by the harm.
21 67. Defendants Mountain Cascade, Inc,and Does 20,30 and each of them
22 failed to verity location of 10"petroleum Ones prior to any construction tion between pipe
23 stations 100+00 and 101+00.
24 EIGHTH CAUSE OF ACTION
25 (Premises Liability CACI 1009)
26 (By Plaintiffs Against Defendants Mountain Cascade, Inc.and Does 20.30)
27 68. Defendants Mountain Cascade, inp.and Does 20-30 occupied and
28 controlled premises in which a 14-foot deep trench was being excavated.
COMPLAINT FOR PERSONAL
INJURIES AND WRONGFUL DEATH
1 69. An unsafe condition was created by or known to Mountain Cascade, Ina
2 and Does 20-30 and was not a known condition that Plaintiffs'Decedent's employer
3 Matamoros Welding was hired to correct or repair.
4 70. Mountain Cascade, Inc.and Does 20-30 retained control.over safety
5 conditions at the worksite and through their actions or failure to take actions they
6 contributed to death of Decedent and Plaintiffs'inljudo&
7 H(NTH CAUSE OP ACTION
8 (Presumption of Negligence)
9 (By Plaintiffs Against All Defendants)
10 71. Such a fire and explosion is the kind of event which ordinarily does not
11 happen unless someone is negligent.
12 72. Such fire and explosion was caused by an agency or instrumentality in
13 the exclusive control of the Defendants and over which the Defendants had the
14 exclusive right of control.
15 73. Su6h fire and explosion was not due.to any voluntary action or
16 contributionon tie part of the Plaintiffs' Decedent which was the cause of Plaintiffs'
17 Decedent's injury and death.
18 TENTH CAUSE OF ACTION
19 (Negligent Undertaking)
20 (By Plaintiff Against All Defendants)
21 74. At all times herein mentioned Defendants, and each of them, undertook
22 for consideration to tender services,perform acts,and/or labor and/or safety
23 inspections in the course of which said Defendants knew or reasonably should have
24 known precautions were necessary for the protection of others including Decedent
25 working at said premises.
26 75. Defendants,and each or them,negligently rendered servides,perfomled
27 acts,failed to fumish labor and reasonable safety Inspections, and otherwise failed to
28 exercise reasonable care in said undertaking.
COMPLAIN'FOR PERSONAL INJURIES AND WRONGFUL DEATH 12
1 76. Defendants Kinder Morgan Incorporated, Kinder Morgan Energy Partners
2 LP,and Does 1-20 were operators of a subsurface Installation within the meaning'of
3 Government Code§4216 who received notification of proposed excavation work in
4 accordance with Government Code§4216.2 and thereafter undertook but failed,to
S locate and field mark the approximate location which may be affected by the
6 excavation,to the extent and degree of accuracy that the information is available either
7 in the records of the operator as determined through standard locating techniques
8 other than excavation,and failed to advise of the location of the operators subsurface
9 installations which may be affected by the excavation, In accordanca with Government
10 Code§4216.3.
11 77. Defendants Mountain Cascade, Inc.and Does 20.30 and each of them
12 was an'weavator'engaged in an•excavation"withln the meaning of Government
13 Code§4216,and undertook but failed to determine the exact location of subsurface
14 installations In conflict with the excavation by excavating with hand tools within the area
1S of the approximate location of subsurface installations as determined by field marldng
16 before using power-operated or power-driven excavating or boring equipment in
17 violation of Government Code§4216.4.
is 78. Defendants,and each of them,thereby increased the risk of harm to
19 others,including Decedent,who were foreseeably upon said premises.
20 ELEVENTH CAUSE OF ACTION
21 (Intentional Misrepresentation Causing Physical Harm by Plaintiff Marilu Angeles as
22 Guardian ad Litem for the Successors in interest of Israel Hemandez, Deceased;
23 Against Defendants Knder Morgan, Incorporated; tinder Morgan Energy Partners LP;
24 Mountain Cascade, Ina;and Does 1-30)
.25 79. Defendants,and each of them, knew that construction workers were
26 excavating a trench and building a 694nch pipeline to transport water from Walnut
27 Creek to Sart Ramon, In accordance with a written general contract between East Bay
29 Municipal Utility District and Mountain Cascade; Ina
COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 13
1 80. Defendants,and each of them,knew that the route of the 69 inch water
2 pipeline was to be generally parallel to,east of and above a 10-Inch petroleum
3 products pipeline owned and operated by lander Morgan, Incorporated and/or hinder
4 Morgan Energy Partners LP for transporting.gasolins under high pressure
5 approximately 60 miles from Concord to San Jose.
6 81. Defendants Kinder Morgan, Incorporated,lander Morgan Energy Partners
7 LP,and Does 1-20 were operators of a subsurface Installatibn within the meaning of
8 Goverment Code§4216.
9 82. sander Morgan, Incorporated is the general partner of lander Morgan
10 Energy Partners LP.
11 83. lander Morgan Energy Partners LP Is the largest independent
12 ownWoperator of products pipelines in the country,transporting more than two million
13 barrels a day of gasoline,jet fuel, and diesel fuel and up to 7.8 billion cubic feet a day
14 of natural gas liquids,through more than ten thousand miles of pipelines,of which
15 some 3,850 miles are in its Pacific pipeline system.
16 84. I(Inder Morgan Energy Partners LP is the nation's largest publicly traded
17 pipeline limned partnership in the United States in terms of market capitalization.
is 85. Defendants,and each of them,low that Kinder Morgan Energy Partners
19 LP owns a 45%interest in the Cochin Pipeline System,a 1900-mile natural gas liquids
20 pipeline operating between Alberta and Ontario in Canada that transverses through
21 seven states In the United States.
22 86. Defendants,and each of them, knew that on July 16,2003,at
23 approximately 5.30 am.,the USA portion of the Cochin Pipeline System experienced a
24 rupture and fire at a rural location approximately 75 miles east of Fargo, North Dakota.
25 87. On July 30,2003,a Kinder Morgan Energy Partners pipeline broke in a
26 Tucson subdrAsion. Gasoline sprayed more than fifty feet into the air, saturated five
27 homes being built and contaminated soil and groundwater.
29
COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL.DEATH 14
f� •
. • i
1 88. On April 29,2004',at approximately 7:00 p.m.,a Kinder Morgan Energy
2 Partners pipeline which transports gasoline,jet fuel,and diesel to Chico and
3 Sacramento, California and to Reno,Nevada,experienced a rupture not discovered
4 until April 30,2004,as a result of which approximately 1,000 is Mls or 42,000 gallons
5 of diesel spilled into about 250 acres of Suisun Marsh,among the most important
6 wetlands in Northam California. Criticized for the delayed response,a managing agent
7 of Defendants Kinder Morgan, Incorporated and lander Morgan Energy Partners LP
8. replied"You can't cry waif every time you see an anomaly.'
9 89. On November 22,2004,for the second time In as many months,a
14 pipeline that transports gasoline from Colton and Barstow,California into Las Vegas,
11 Nevada experienced a rupture In a rural area near Baker,California. California
12 Highway Patrol officers on nearby Interstate 15 noticed a strong odor and dosed the
13 freeway,which led to discovery of a 60-to-60 foot gasoline vapor geyser.
14 90. Defendants,and each of them,knew that East Bay Municipal Utility
15 District's contract with its general contractor required compliance with all applicable
16 statutes and occupational and health standards,rules, regulations,and orders.
17 91. Defendants, and each of them,knew that to guard against extreme risk of
18 Injury to persons and property,East Bay Municipal Utility District's contract with its
19 general contractor speafed that work a"South Broadway is adjacent to a high
20 .pressure petroleum pipeline owned by Kinder Morgan, Incorporated;that cmutru tion
21 activities should be coordinated with Lary Hosler,Manager Pipeline Maintenance,
22 Kinder Morgan, incorporated;that the contractor shall notify all owners of utilities when
23 his work is in progress;that the contractor is responsible for having all underground
24 utilities and structures located in advance of excavation;'that the contractor notify all
25 known owners of underground utilities in the area of proposed work and Underground
26 Service Alert,800-642-2444 at least two worWng days bOm the start of actual
27 axcavatlon;that the contractor shall determine the exact location of existing utilities
28 whose approximate locations are shown on drawings;that contract drawings depicted a
COMPiAW FOR PERSONAL INJIlitIES AND WRONML DEATH t5
I bend In the 10"petroleum pipeline between pipe stations 100+00 and.101+00;that the
2 contractor shall probe carefully to determine the exact location of utility, and hand
3 excavate when necessary to avoid damages;that the contractor shall verify location of
4 10"petroleum lines prior to any construction between pipe stations 100+00 and
5 101+00;and that hand excavation is required within 24"on either side of the exterior
6 surface of any underground utfltty.
7 92. Said Defendants, and each of them,.were aware of the responsibility to
8 provide notification of proposed excavation work In accordance with Ggvemment Code
9 §4216.2,to locate and field mark subsurface installations which may be affected in
to 1'ecoordence with Goverranent Code§4216.3,and to determine the exact location of
11 subsurface installations by hand excavating in accordance with Government Code .
12 §4216.4.
13 93. Defendants,and each of them,knew that operating, looting,field
14 marki and excavating near petroleum lines
ng ng petro products pipe transporting gasoline,jet
15 and diesel fuels areated the existence of a special,high degree of risk of harm to
16 persons, land and chattels of others, knew the likelihood that harm that results from it
17 will be great,and knew the petroleum products pipeline was inappropriate to the
18 surrounding residential neighborhood,school,and community where it was located.
19 94. Defendants,and each or them,knew that Matamoros pipeline, Inc., a.
20 welding subcontractor to East Bay Municipal Utility District's general contractor,and its
21 employees would rely for their safety upon defendant's compliance with statutory,
22 regulatory,and contract terms inducting but not limited to locating,field marking,and
23 hand excavating near the petroleum products pipeline.
24 95. Defendants,and each of them,knew that East Bay Municipal Utility
25 District's general contract was initially awarded to Modem Continental Construction of
26 Cambridge, Massachusetts.
27 96. Defendants, and each of them, knew that in 2003 Modem Continental
28 Construction determined that a segment of the petroleum products pipeline was
COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH i6
I approximately 13 feet from where it was marked by Wnder Morgan,Incorporated,
2 Kinder Morgan Energy Partners LP and Does 120.
3 1 97. Defendants,and each of them,knew that in May 2004 East Bay Municipal
4 Utility District terminated its general contact with Modem Continental in part for working
5 too slowly.
6 98. Defendants,and each of them, knew that prior to November 9,2004,
7 Modem Continental Construction objected to termination of its general contract with
8 East Bay Municipal Utility District,expressed concem•about the petroleum product
9 pipeline along South Broadway,filed suit for breach of contract,and alleged its delays
10 were duein part to problems with how well the 104nch petroleum products pipeline was
11 located on general contract documents and plans.
12 99. Defendants,and each of them,knew that prior to November 9,2004, East
13 Bay Municipal Utility District awarded its general contract to Mountain Cascade, Ina,a
14 corporation or other business entity organized pursuant to the laws of the State of
15 Califomia with its principal place of business in the City of Livermore, County of
16 Alameda, State of Califomia.
17 100. Defendants Mountain Cascade, ina and Does 2D-30,and each of them,
18 was an"excavator"engaged in an"excavation"within the meaning of Government
19 Code§4216.
20 101. Defendants,and each of them,knew that Mountain Cascade, Inc.
21 advertised that-we routinely take on rough projects that our competitors shy away from
22 and tum them into profit"
23. 102 Defendants,and each of them,knew that Mountain Cascade,Inc,has had
24 two deaths in the last five years,the most recent being in March 2004 when a worker
25 was crushed while unloading.pipe.
26 103. Defendants,and each of them, made to East Bay Municipal Utility District,
27 Decedent's employer Matamoros Pipeline, Inc,, Decedent's coworkers, and Decedent,
28 representations of material fad as follows:
COMPLAINT FOR PERSONAL wu w AND WRONGFUL DEA'i H 17
I a. Defendants Kinder Morgan, incorporated,Kinder Morgan Energy Partners
2 LP,and Does 1-20 placed field marking devices so as to represent the location of their
3 petroleum products pipeline;
4. b. Defendants Kinder Morgan, Incorporated,IGnder Morgan Energy Partners
5 LP,and Does 1-20 stated that field marking devices accurately represented the
6 location of their petroleum products pipellne,that excavators need only follow the field
7 marlang devices to avoid conflict with their petroleum products pipeline,and that
8 additional locating or monitoring by said Defendants was unnecessary,
9 a Defendants Mountain Cascade, Ina and Does 20-30 by using
10 power-operated or power-driven excavating or boring equipment and otherwise,stated
11 .they had by excavating with hand tools determined the exact location of the petroleum
.12 products pipeline.
13 104. These representations were in fact false,and the truth was as follows:
14 a. The petroleum products pipeline was not where Kinder Morgan, .
15 Incorporated,Kinder Morgan Energy Partners LP,and Does 1-20 represented it to be;
16 b. Kinder Morgan, incorporated, Kinder Morgan Energy Partners LP,and
17 Does 1-20,and each of them,had failed to locate and field marts the apprwdmate
18 location which may be affected by the excavation,to the extent and degree of accuracy
19 that the Information Is available either In their own records or through standard locating
20 techniques other than excavation;
21 a Defendants,and.each of them,for their financial benefit had knowingly
22 failed to employ personnel and/or employed unfit personnel to locate and mark the
23 petroleum products pipeline,
24 d. The exact location of the petroleum products pipeline,not where field
25 marking indicated it to be,had not been determined by excavating with hand tools;and
26 e. The.exact location of the petroleum products pipeline,not where field
27 marking indicated It to be,was determinable from records,drawings,and contract
-28
COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 18
I documents in the possession of Defendants lander Morgan, Incorporated,Kinder
2 Morgan Energy Partners LP,Mountain Cascade,Inc,and Does 1-30.1 .
3 f. The records,drawings,and contract documents In the possession of
4 Defendants depicted a bend in the 10°petroleum pipeline between pipe stations
S 100+00 and 101+•00.
6 105. When Defendants,and each of them,made the above representations,
7 said Defendants knew them to be false,had no reasonable ground for believing the
8 representations were true,and knew they had not the knowledge which they professed
9 106. Defendants,and each of them,made the representations with the intent
10 -that the representations be communicated to Decedent's employer, Decedents
11 coworkers,and Decedent,that the representations induce Decedents employer,
12 Decedents coworkers,and Decedent to work and act in justifiable reliance upon the
13 representations,which actions Defendants knew involved an unreasonable risk of
14 physical harm to Decedents coworkers and Decedent
15 107. Decedents employer,Decoder>t's coworkers and Decedent received
16 Defendants'misrepresentations,and justifiably relied upon them.
17 108. Defendants,and each of them,In failing to notify,failing to mark even the
18 approAmate location,and failing to determine the'e mct location of the petroleum
19 products pipeline,before mcavating with power-operated or power-driven excavating
20 or boring equipment, acted intentionally and despicably and with willful and conscious .
21 disregard of the safety of workers in the vidnity. .
22 109. Defendants Kinder Morgan, incorporated, Kinder Morgan Energy Partners
23 LP,Mountain Cascade,Inc.,and Does 1-30 had advance knowledge of the unfitness of
24 agents and employees, including but not limited to those who placed field marking
25 devices,those who represented that excavators need only follow field marking devices
26 to avoid conflict with the petroleum products pipeline,and those who failed to
27 determine its exact location from records,drawings,contract documents in their
28
COMPLAINT FOR PERSONAL KR1RIE3 AND WRONOFM DEATH ?8
1. possession,or excavation with hand tools,and employed them with conscious
2 disregard far the rights and safety of others.
3 110. Defendants Kinder Morgan, Incorporated, Kinder Morgan Energy Partners
4 LP, Mountaln Cascade,Ina, and Does 1-30,and each of them,through officers,
5 directors and/or managing agents thereby authorized said acts of employees and
6 thereafter ratified said acts by continuing to employ them, by failure to criticize,
7 censure, terminate,suspend or take other remedial action against them,by interfering
3 with attempts by regulatory authorities including but not limited to Cal-OSHA to
9 Interview them;and by providing them with legal counsel so as to defend their conducL
10 111. The above-described conduct of Defendants Kinder Morgan,
11 Incorporated,Kinder Morgan Energy Partners, LP,Mountain Cascade, Ina and Does
12 1-30,and each of them,which includes intentional disregard of safety standards and
13 aging in a manner calculated to interfere with or deceive regulatory authorities,for
14 Defendants'financial benefit,was despicable and carried on with a willful.and
15 conscious disregard for the rights and safety of others.
16 112 The above-described conduct of Defendants Kinder Morgan,
17 Incorporated, Kinder Morgan Energy Partners, LP,Mountain Cascade, Ina and Does
18 1-30, and each of them,winch includes intentional disregard of safety standards and
19 acting in a manner calculated to stonewall or deceive regulatory authorities,for
20 Defendants'financial benefit,subjected persons to awl and unjust hardship in
21 conscious disregard far such persons'rights.
22 113. Asa.proximate result of said conduct,said reliance thereon, and of the
23 hljuries sustained, Plaintiffs are entitled to the protection of Civil Code§3294 and to an
24 award of exemplary and punitive damages In excess of the jurisdictional minimum of
25 this Court
26 PRAYER FOR RELIEF
27 WHEREFORE,Plaintiffs pray for judgment against Defendants,and each of
28 them, as follows:
COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 20
1 1. For general damages in excess of the jurisdictional minimum of this Court
2 2. For funeral,burial and Incidental expenses according to proof;
3 3. For loss of support and related economic losses according to proof;
4 4. For the Second Cause of Action only,to disgorge profits from unlawful
5 business acts and practices;
6 5. For the Eleventh Cause of Action only,for damages for the sake of
7 example and by way of punishing the Defendants named therein,pursuant to Civil
8 Code§3294;
9 6. Fol•prejudgment interest and attorneys fees according to law; -
10 7. For costs of this suit;and
11 8. For such olher and further relief as is proper.
12 DATED: January 2005 BOXER&OERSON, LLP
13
' t3y:
'14 JOHN M.ARM
Attorneys for Plaintiffs
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COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 21
John H.Gomez(171485)
I Maria F.Palmieri(234560)
The Gomez Law Firm.
2 625 Broadway,Suite 1104
San Diego,California 92101
3 Telephone: (619)237-3490/Fax:(619)237-3496
4 Attorneys for Plaintiff ROGER PAASCH
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6
7
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
IN AND FOR THE COUNTY OF CONTRA COSTA
9
GAS PIPELINE EXPLOSION CASES Judicial Council Coordination Proceedings .
10 ) No.:4433
Coordinated Actions:
I 1 ) (Unlimited Civil)
Knox,et al.v.MOUNTAIN CASCADE,et )
12 al.(Contra Costa Sup. Ct.Case.No.C 05- ) SECOND AMENDED COMPLAINT FOR
00281);FARLEY v.MOUNTAIN ) DAMAGES;DEMAND FOR JURY
13 CASCADE,et al. (Contra Costa Sup.Ct. ) TRIAL
Case No.C 05-01573);REYES,et al.v. )
( 14 EAST BAY MUNICIPAL UTILITY ) ROGER PAASCH v.EAST BAY
DISTRICT,et al.(Alameda Sup. Ct.Case ) MUNICIPAL UTILITY DISTRICT,et al.
15 No.RG-05-207720);ARIAS,et al.v. ) (Contra Costa Sup. Ct.Case No.. C 05-01844)
KINDER MORGAN,et al.(Alameda Sup. )
16 Ct.Case No.RG-05-195567);ANGELES,et )
al.v.KINDER MORGAN,et al.(Alameda )
17 Sup. Ct. Case No.:RG-05-195680);IM,et al. )
v. KINDER MORGAN,et al.(Contra Costa )
18 Sup.Ct. Case No. C05-02077);PAASCH v.
EAST BAY MUNICIPAL UTILITY )
19 DISTRICT,et al.(Contra Costa Sup.Ct. )
Case No.C05-08144);FUENTES v. )
20 KINDER MORGAN,et al.(Contra Costa )
Sup.Ct.Case No.:C05-02286)
21
22
PARTIES AND VENUE
23
Plaintiff alleges:
24
1. Plaintiff ROGER PAASCH is an individual and,at all times mentioned herein was,a resident
25
of the State of California.
26
2. Defendant EAST BAY MUNICIPAL UTILITY DISTRICT(hereinafter"EBMUD")is,and at
�L.F 27
all times mentioned herein was, a publicly owned utility formed under the Municipal District Act
28
SECOND AMENDED COMPLAINT FOR DAMAGES
I passed by the California Legislature in 1921. EBMUD maintains its administrative and headquarters'
2 offices and is situated in the City of Oakland, County of Alameda, State of California. EBMUD
3 planned, designed, owned, supervised, controlled,and constructed a public works construction project
4 known as the Walnut Creek-San Ramon Valley Improvement Project ("Project,") which involved the
5 installation of a water pipeline ("EBMUD Pipeline.") The route of the EBMUD Pipeline was to be
6 generally parallel to, east of, and above a high-pressure fuel pipeline system located in, among other
7 places,the City of Walnut Creek, County of Contra Costa, State of California("Kinder Pipeline.")The
8 section of the Project and Kinder Pipeline at issue in this complaint was located within downtown
9 Walnut Creek, California in the direct vicinity of business entities, a school, and residences. On or
10 about May 9, 2005, Plaintiff presented his claims to EBMUD pursuant to Government Code section
11 910. On or about May 16,2005,EBMUD rejected the claims in their entirety.
12 3.Defendant MOUNTAIN CASCADE INC. (hereinafter"MOUNTAIN CASCADE") is,and at
13 all times mentioned herein was,a corporation duly organized and existing under the laws of the State of
14 California. MOUNTAIN CASCADE is a pipeline contractor and maintains its headquarters' offices in
15 the City of Livermore, County of Alameda, State of California. EBMUD hired, among others,
16 MOUNTAIN CASCADE as the general contractor on the Project, and the events in issue occurred
17 during the performance of a contract entered into in the County of Alameda, State of California.
18 MOUNTAIN CASCADE is the largest pipeline contractor in the region, and prides itself that it
19 "routinely take[s] on tough projects that our competitors shy away from and turn[s] them into profit."
20 MOUNTAIN CASCADE represents that the foundation of its success is built on its dedication to
21 "knowledge,integrity,quality and superior service."
22 4.Defendant KINDER MORGAN ENERGY PARTNERS,L.P.(hereinafter"KMEP")is,and at
23 all times mentioned herein was,a limited partnership duly organized and existing under the laws of the
24 State of Delaware, and qualified and doing business in the State of California. KMEP is, and at all
25 times relevant herein was,the designer,manufacturer, owner, operator,manager, locator, field marker,
26 monitor, and inspector of a high-pressure fuel pipeline system located in,among other places,the City
¢Ur Flim 27 of Walnut Creek, County of Contra Costa, State of California ("Kinder Pipeline.") KMEP is the
„rte.
28 largest independent owner/operator of products pipeline in the United States, transporting more than
i -2-
SECOND AMENDED COMPLAINT FOR DAMAGES
I two million barrels a day of gasoline,jet fuel and diesel fuel and up to 7.8 billion cubic feet a day of
2 natural gas liquids through more than 10,000 miles of pipelines, of which some 3,850 are in its Pacific
3 pipeline system. It is the largest publicly traded pipeline limited partnership in the United States in
4 terms of market capitalization.
5 5.Defendant SFPP,LP(hereinafter"SFPP") is,and at all times mentioned herein was,a limited
6 partnership duly organized and existing under the laws of the State of Delaware, and qualified and
7 doing business in the State of California. SFPP is, and at all times relevant herein was, the designer,
8 manufacturer, owner, operator, manager, locator, field marker, monitor, and inspector of the Kinder
9 Pipeline. SFPP is an operating partnership and subsidiary limited partnership of KMEP.
10 6. Defendant KINDER MORGAN G.P., INC. (hereinafter "KMGP") is, and at all times
II mentioned herein was, a corporation duly organized and existing under the laws of the State of
12 Delaware, and qualified and doing business in the State of California as, among other things, the
13 general partner of KMEP. KMGP, is, among other things, the wholly owned subsidiary of Defendant
( 14 KINDER MORGAN,INC. KMGP is,and at all times relevant herein was,the designer,manufacturer,
15 owner,operator,manager,locator,field marker,monitor,and inspector of the Kinder Pipeline.
16 7. Defendant KINDER MORGAN,INC. (hereinafter"KMI") is,and at all times mentioned
17 herein was, a corporation duly organized and existing under the laws of the State of Kansas, and
18 qualified and doing business in the State of California. KMGP is the wholly-owned subsidiary of KMI.
19 KMI is, and at all times relevant herein was, the designer, manufacturer, owner, operator, manager,
20 locator, field marker, monitor, and inspector of the Kinder Pipeline. KMI is one of the largest mid-
21 stream energy companies in the United States, owning and/or operating more than 35,000 miles of
22 natural gas and products pipeline.
23 8.Defendant CAMP.DRESSER&McKEE INC. ("hereinafter"CDM") is, and at all times
24 mentioned herein was, a corporation duly organized and existing under the laws of the State of
25 Massachusetts, and qualified and doing business in the State of California. CDM entered into a
26 contract with,among others,EBMUD to design the Project. CDM then entered into a subcontract with
27 CAROLLO ENGINEERS to design the portion of the Project at issue in this lawsuit. Prior to serving
sdv.
28 the First Amended Complaint on CDM, Plaintiff has filed the required certificate of merit pursuant to
-3-
SECOND AMENDED COMPLAINT FOR DAMAGES
I Code of Civil Procedure section 411.35.
2 9. Defendant CAROLLO ENGINEERS (hereinafter "CAROLLO") is, and at all times
3 mentioned herein was, a professional corporation duly organized and existing under the laws of the
4 State of Arizona,and qualified and doing business in the State of California. CAROLLO entered into a
5 subcontract agreement with CDM to design the Project, the portion of which is at issue in this lawsuit.
6 Prior to serving the First Amended Complaint on CAROLLO,Plaintiff has filed the required certificate
7 of merit pursuant.to Code of Civil Procedure section 411.35.
8 10. Defendant COMFORCE TECHNICAL SERVICES, INC. (hereinafter "COMFORCE') is,
9 and at all times mentioned herein was,a corporation duly organized and existing under the laws of the
10 State of Delaware, and qualified and doing business in the State of California. COMFORCE is a
11 provider of contingent staffing, information technology, consulting and human resource outsourcing
12 solutions, including. COMFORCE provided temporary staffing of pipeline construction inspectors to
13 and was hired by, among others, KMEP, SFPP, KMGP, and KMI, with respect to the Project and
14 Kinder Pipeline.
15 11. DOES 1-50, inclusive, and each of them, are, and at all times mentioned herein were,
16 individuals and/or business organizations form unknown that were engaged in the business of planning,
17 designing,owning,supervising,controlling and constructing the Project.
18 12. DOES 51-100, inclusive, and each of them, are, and atall times mentioned herein were,
19 individuals and/or business organizations form unknown were engaged in the construction,
20 supervision, operation, and control of the Project as contractors or subcontractors hired by EBMUD,
21 and DOES 1-50,and each of them,and/or MOUNTAIN CASCADE.
22 13. DOES 101-150, inclusive, and each of them, are, and at all times mentioned herein were,
23 individuals and/or business organizations form unknown that designed, manufactured, sold, owned,
24 controlled, operated, maintained, inspected, distributed, transported, located, field marked, monitored,
25 and managed the Kinder Pipeline and/or contents therein.
26 14. DOES 151-200, inclusive, and each of them, are, and at all times mentioned herein were,
a.. 27 individuals and/or business organizations form unknown that were the owner(s) and/or bailee(s)of the
nYLr+
28 backhoe vehicle which struck the Kinder Pipeline.
j`
_4-
SECOND AMENDED COMPLAINT FOR DAMAGES
1 15. DOES 201-250, inclusive, and each of them, are, and at all times mentioned herein were,
2 individuals and/or business organizations form unknown that drove and/or operated the backhoe
3 vehicle which struck the Kinder Pipeline.
4 16. DOES 251-300, inclusive, and each of them, are, and at all times mentioned herein were,
5 individuals and/or business organizations form unknown that owned or controlled the real property
6 where the Project,EBMUD Pipeline,and Kinder Pipeline was located.
7 17.Plaintiff is ignorant of the true names and/or capacities of defendants sued herein as DOES 1-
8 300, inclusive, and therefore sue these defendants by such fictitious names. Plaintiff will amend this
9 complaint to allege their true names and capacities when ascertained. Plaintiff is informed and believes,
10 and on that basis alleges,that each of said fictitiously named defendants is responsible in some manner
11 for the occurrences hereinalleged,and that the injuries herein alleged were proximately caused by said
12 their conduct.
13 18.Plaintiff is informed and believes and on that basis alleges that at all times mentioned herein,
14 each of the defendants was the agent and employee of each of the remaining defendants, and in doing
15 the things alleged in this Complaint, was acting within the course and scope of this agency and
16 employment, with the knowledge, approval, consent and ratification of each of the remaining
17 defendants.
18 19.Plaintiff is informed and believes,and thereon alleges,that at all times relevant, there exists,
19 and has existed,a unity of interest and ownership between KMEP, SFPP,KMGP and KMI,and DOES
20 101-150,and each of them,such that any individuality and separateness between the entities has ceased
21 to exist. Upon information and belief, KMEP is the alter ego of KMGP, SFPP, KMI, and DOES 101-
22 150, and each of them. Upon information and belief, SFPP is the alter ego of KMEP, KMGP, KMI,
23 and DOES 101-150, and each of them. Upon information and belief, KMGP is the alter ego of KMI,
24 and DOES 101-150. Among other things, (a) KMEP was and is completely controlled, dominated,
25 managed and operated by KMGP and KMI,and DOES 101-150,and each of them, (b) SFPP was and
26 is completely controlled, dominated, managed and operated by KMEP, KMGP, KMI and DOES 101-
L—F-
01-
L-F— 27 150,and each of them,(c)KMGP was and is completely controlled, dominated,managed and operated
naLw
28 by KMI, and DOES 101-150, and each of them, (d) KMEP, SFPP, KMGP,KMI and DOES 101-150,
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SECOND AMENDED COMPLAM FOR DAMAGES
l.�
I and each of them, have permitted assets to be transferred between themselves without adequate
2 consideration, (e) KMEP, SFPP, KMGP, KMI and DOES 101-150, and each of them, have disguised
3 corporate profits in order to evade liability and the payment of judgments, and (f) KMEP, SFPP,
4 KMGP, KMI, and DOES 101-150,and each of them,was and is inadequately capitalized. Adherence
5 to the fiction of the separate existence of KMEP, SFPP, KMGP,KMI and DOES 101-150, and each of
6 them,would permit an abuse of the corporate privilege and would sanction fraud or promote injustice
7 because the entities, and each of them, used in bad faith for the purpose of evading liability and as a
8 means of allowing the other entities, and each of them, to profit from their control and manipulation
9 free from the claims of Plaintiffs.
10 20.Venue is proper in the Superior Court of the State of California,County of Contra Costa.
11 GENERAL ALLEGATIONS
12 21.Plaintiff,incorporates each and every allegation contained in paragraphs 1 through 20 above,
13 as though fully set forth herein.
(� 14 22. EBMUD, and DOES 1-50, and each of them, planned, designed, owned, supervised,
15 controlled, and constructed the Project, which involved the installation of the EBMUD Pipeline.
16 EBMUD began the design of the Project in 2000. EBMUD entered into a contract with CDM for CDM
17 to provide professional engineering design the Project. CDM later entered into a subcontract with
18 CAROLLO, whereby CAROLLO would design the portion of the Project which is at issue in the
19 present lawsuit.
20 23. EBMUD's general contract was initially awarded on or about October of 2002 to Modern
21 Continental Construction Co. In late 2002, the full Kinder Pipeline was marked by a line rider
22 employed by KMEP, SFPP,KMGP,KMI,COMFORCE,and DOES 101-150, and each of them. The
23 individual was supposed to be using conductive locating equipment. The individual marked the Kinder
24 Pipeline by placing paintmarks and flags along the Kinder Pipeline, but failed to indicate the bend in
25 the line at station 100+15 where an oak tree once stood.
26 24. Prior to beginning field work on the Project, a field meeting was held on or about February
-Fk� 27 3, 2003 between, among others, Modern Continental Co., EBMUD, KMEP, SFPP, KMI, KMGP,
28 COMFORCE, and DOES 1-150, and each of them. At the conclusion of the field meeting,
SECOND AMENDED COMPLAINT FOR DAMAGES
I representatives of EBMUD, KMEP, SFPP,KMGP, KMI,COMFORCE,and DOES 1-150, and each of
2 them, walked the South Broadway portion of the Kinder Pipeline. No fresh field markings were
3 observed and no offsets were marked or pointed out by EBMUD, KMEP, SFPP, KMGP, KMI,
4 COMFORCE, and DOES 1-150, and each of them, around station 100+15. As of March of 2003, no
5 field markings were visible.
6 25. In addition, in or about 2003 or 2004, Modern Continental Co. was excavating for the
7 EBMUD Pipeline and Project,and determined that a segment of the Kinder Pipeline was approximately
8 13 feet from where it had been field marked by KMEP, SFPP,KMGP,KMI,COMFORCE,and DOES
9 101-150, and each of them. Modern Continental Co. expressed this concern to, among others,
10 EBMUD,KMEP,SFPP,KMGP,KMI,and DOES 1-50,and 101-150,and each of them. In addition,in
I1 or about August of 2003, EBMUD requested KMEP, SFPP, KMGP, KMI, and DOES 101-150, and
12 each of them, to relocate a section of the Kinder Pipeline because it was, among other things, hard to
13 locate and a hindrance to completion of the Project. In or about early 2004, Modern Continental,
14 EBMUD, and DOES 1-50, and each of them, were extremely concerned about the location of the
15 Kinder Pipeline because it was still in the way of the excavation for the EBMUD Pipeline and Project.
16 Among others,Modern Continental Co., EBMUD, KMEP, SFPP, KMGP, KMI, and DOES 1-50, and
17 101-150, and each of them, discussed in early 2003 the location of.the Kinder Pipeline and how to
18 continue working on the Project despite the location of the Kinder Pipeline.
19 26. On or about May 28, 2004, EBMUD issued a"Notice of Default Termination" to Modern
20 Continental Construction Co.
21 27. After EBMUD terminated its general contract with Modern Continental Construction Co.,
22 EBMUD, and DOES 1-50, and each of them, contracted in August of 2004 with, among others,
23 MOUNTAIN CASCADE and DOES 51-100, and each of them, to complete construction of the
24 Project. In compliance with the provisions of the Subletting and Subcontracting Fair Practices Act of
25 the Public Contract Code of the State of California, MOUNTAIN CASCADE and DOES 51-100, and
26 each of them, thereafter subcontracted with, listed and employed, among others, Matamoros Pipeline,
RL"Fkm 27 Inc. to,among other things,weld together segments of the EBMUD Pipeline. Matamoros Pipeline,Inc.
nasr
28 employed ROGER PAASCH,as a welder.
0 -7-
SECOND AMENDED COMPLAINT FOR DAMAGES
1 28.Prior to starting excavation,the EBMUD contract required a field meeting between EBMUD
2 and MOUNTAIN CASCADE. The meeting occurred on September 28, 2004 and was attended by
3 representatives of EBMUD, MOUTAIN CASCADE, KMEP, SFPP, KMGP, KMI, COMFORCE, and
4 DOES 1-150, and each of them. At that meeting, the line rider employed by KMEP, SFPP, KMGP,
5 KMI, COMFORCE, and DOES 1-150, and each of them, represented that the line markers were
6 directly over the Kinder Pipeline and that the Kinder Pipeline ran straight between the line markers.
7 The attendees of the meeting walked the entire length of the Kinder Pipeline using a 100-foot tape to
8 show the location of the proposed EBMUD Pipeline and determine if there would be any interference
9 with the Kinder Pipeline. Fieldwork commenced in late September,2004.
10 29. In or about October of 2004, benching for the trenching excavator in the area of the offset
11 took place. MOUNTAIN CASCADE,and DOES 1-150, and each of them,benched over the offset at
12 station 100+15. As of November 3 and 4,2004,there were no markings indicating the offset.
13 30. On or about November 8, 2004, .a site meeting occurred which was required by
14 MOUNTAIN CASCADE three days earlier,and attended by,among others,MOUNTAIN CASCADE,
15 KMEP, SFPP,KMGP,KMI, COMFORCE,EBMUD,and DOES 1-150,and each of them. One of the
16 purposes of the meeting was to provide assurance that MOUNTAIN CASCADE was excavating
17 properly; MOUNTAIN CASCADE did not specifically inquire about the offset at station 100+15, and
18 neither KMEP, SFPP, KMGP, KMI, COMFORCE, EBMUD, and DOES 1-150, and each of them,
19 represented anything about the offset.
20 31. On or about November 9, 2004, ROGER PAASCH was working within the course and
21 scope of his employment at the Project, welding inside the EBMUD Pipeline, which lay in a trench
22 being excavated for the EBMUD Pipeline and following South Broadway between Newell Avenue and
23 Rudgear Road in the City of Walnut Creek,County of Contra Costa,State of California.
24 32. Near to where ROGER PAASCH was working, a backhoe operator(Greg Berry)under the
25 direct supervision and control of EBMUD,MOUNTAIN CASCADE, KMEP, SFPP, KMGP,KMI and
26 DOES I-150, and each of them, excavated the trench in which the EBMUD Pipeline was being
_L-RM 27 installed.
28 33. A buried underground pipeline owned and operated by, among others, KMEP, SFPP,
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SECOND AMENDED COMPLAINT FOR DAMAGES
I KMGP,and KMI, and DOES 101-150,and each of them("Kinder Pipeline")lay immediately adjacent
2 to the EBMUD Pipeline trench. The Kinder Pipeline was at all times an underground utility
3 transporting flammable material,consisting of gasoline,diesel fuel and/or jet fuel.
4 34. The Kinder Pipeline lay immediately adjacent to the EMBUD Pipeline trench. In fact, there
5 was a bend in the Kinder Pipeline at station 100+15,where the Kinder Pipeline veered around the roots
6 of an oak tree that once stood at the location.
7 35.As a result of the conduct.of defendants,and each of them,herein,on or about November 9,
8 2004, a backhoe operator(Greg Berry) as an employee of MOUNTAIN CASCADE and/or DOES 51-
9 100, 151-250,and each of them, se operated the backhoes as to penetrate the Kinder Pipeline, causing
10 the flammable material within to escape.Plaintiff is informed and believes,and thereon alleges,that the
11 flammable material and byproducts thereof from the explosion entered the EMBUD Pipeline in which
12 Plaintiff ROGER PAASCH,was working,resulting in personal injuries to Plaintiff ROGER PAASCH,
13 in a manner presently unknown to Plaintiff,and each of them.Plaintiff ROGER PAASCH,has suffered
( 14 and continues to suffer, among other things, damage to his personal property, personal injury, and
15 unjustifiable and substantial physical pain and mental suffering. Plaintiff ROGER PAASCH also
16 suffered horrendous injury, and physical and mental suffering trapped for a period in the EMBUD
17 Pipeline.
18 36.On or about November 9,2004,MOUNTAIN CASCADE,and DOES 51-100, and 201-250,
19 and each of them, so operated the backhoe as to penetrate the Kinder Pipeline, causing the flammable
20 material within to escape. Plaintiff is informed and believes, and thereon alleges, that the flammable
21 material and byproducts thereof from the explosion entered the EBMUD Pipeline in which ROGER
22 PAASCH was working,resulting in catastrophic personal injuries to ROGER PAASCH. Not only did
23 ROGER PAASCH suffer catastrophic and permanent physical injuries when he was burned,he suffers
24 and will continue to suffer devastating emotional injuries and mental distress as the result of witnessing
25 co-workers burn alive under horrific circumstance.
26 37. Prior to November 9, 2004, KMEP, SFPP, KMGP, KMI and DOES 101-150, and each of
aL--� 27 them, owns a 45% interest in the Cochin Pipeline System, a 1900-mile natural gas liquids pipeline
,,.1,a.
28 operating between Alberta and Ontario Canada, traversing through seven states in the United States.
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SECOND AMENDED COMPLAINT FOR DAMAGES
I On or about July 16, 2003, the United States portions of the Cochin Pipeline System experienced a
2 rupture and fire at a rural location about 75 miles from Fargo,North Dakota.
3 38. Approximately two weeks later on or about July 30, 2003, a pipeline owned/operated by
4 KMEP, SFPP, KMGP, and KMI, and DOES 101-150, and each of them, broke in a subdivision in
5 Tucson, Arizona, spraying gasoline more than fifty feet into the air, saturating five homes, and
6 contaminating soil and groundwater.
7 39. On or about April 29,2004,a pipeline owned/operating by KMEP,SFPP,KMGP,KMI and
8 DOES 101-150, and each of them, which transported gasoline, jet fuel and diesel to Chico and
9 Sacramento, California and Reno, Nevada experienced a rupture not discovered until April 30, 2004.
10 As a result, approximately 1,000 barrels or 42,000 gallons of fuel spilled into about 250 acres of Suisin
11 Marsh, a wetland in Northern California. Criticized for the delayed response, a managing agent of
12 KMEP,SFPP,KMGP,KMI,and DOES 101-150, and each of them,replied"You can't cry wolf every
13 time you see an anomaly."
(� 14 40.On or about November 22,2004,a pipeline owned/operated by KMEP,SFPP,KMGP,KMI,
15 and DOES 101-150, and each of them, transporting gasoline from Colton to Barstow, California into
16 Las Vegas, Nevada experienced a rupture in a rural area near Baker, California. California Highway
17 Patrol officers on nearby Interstate 15 noticed a strong odor and closed the freeway, which led to the
18 discovery of a fifty to sixty foot gasoline vapor geyser.
19 41. In the six years prior to November 9, 2004, MOUNTAIN CASCADE, and DOES 51-100,
20 and each of them, accumulated several safety violations, and were issued several citations from
21 California OSHA for workplace accidents,including but not limited to,the death a worker when a pipe
22 fell on him, the death of a worker when a crane he tried to operate without training collapsed and
23 smashed him against a pipe,.severe lung damage suffered by three workers when poisonous gases
24 overcame them in a sewer in which they were working, the personal injury of a worker when his leg
25 was crushed between two water trucks. MOUNTAIN CASCADE, and DOES 51-100, were also the
26 subject of several civil lawsuits involving wrongful death,as well as criminal prosecutions.
a•• 27 42. On or about May 5, 2005, California OSHA issued two Serious Willful Citations to KMEP
p M Lew
28 for violation of California Code of Regulations ("CCR") sections 1541(b)(1) and 1511(b) totaling
-1a
SECOND AMENDED COMPLAINT FOR DAMAGES
1 $140,000;the evidence showed that KMEP committed an intentional and knowing violation and KMEP
2 was conscious of the fact that what it was doing constituted a violation,or was aware that a hazardous
3 condition existed and made no reasonable effort to eliminate the hazard. OSHA also issued one
4 Serious Citation to CAROLLO for violation of CCR section 1511(b) totaling $22,500, one Serious
5 Citation to MOUNTAIN CASCADE for violation of CCR section 1511(b) totaling $22,500,.and one
6 Serious Citation to EBMUD for violation of CCR section 1511(b)totaling $6,750; OSHA determined
7 with respect to CAROLLO,MOUNTAIN CASCADE,and EBMUD,there was a substantial probability
8 that death or serious physical harm could result from the condition which existed or from the practices,
9 operations or processes at the workplace.
FIRST CAUSE OF ACTION
10 NEGLIGENCE
AS AGAINST EBMUD AND DOES 1-50,INCLUSIVE
11 (By Plaintiff ROGER PAASCH)
12
43.Plaintiff incorporates each and every allegation contained in paragraphs 1 through 42 above,
13
14 as though fully set forth herein.
(
44. At all times relevant herein, EBMUD, and DOES 1-50, inclusive, and each of them, were
15
engaged in the business of planning, designing, owning, supervising, controlling and constructing the
16
Project. EBMUD had an employee(s) or representative(s) at the Project site to exercise exclusive
17
control and supervision of the Project,providing surveying control and quality assurance.
18
45.Because of the dangerous and ultrahazardous nature of the Project,the Kinder Pipeline and
19
contents thereof,and the location of the Kinder Pipeline in the vicinity of the EBMUD Pipeline and the
20
Project,EBMUD and DOES 1-50, inclusive,and each of them,had a nondelegable duty under,among .
21
other things,.OSHA regulations and California statutes and common law, to plan, design, own,
22
supervise,control,survey,and construct the Project in a safe manner to ensure the safety of the public
23
and those working on the Project,including ROGER PAASCH.
24
46.At all relevant times herein,EBMUD and DOES 1-50,inclusive,and each of them,breached
25
said nondelegable duty by,among other things:
26
• negligently and carelessly and recklessly hiring MOUNTAIN CASCADE and others
a9-� 27
including KMEP, SFPP, KMGP, KMI, COMFORCE and DOES 51-150 and 201-250, and each of
28
0 -11-
SECOND AMENDED COMPLAINT FOR DAMAGES
I them,to perform the work on the Project,given,among other things,their poor safety records;
2 • negligently and carelessly and recklessly supervising and exercising retained control over
3 MOUNTAIN CASCADE and others including KMEP, SFPP, KMGP, KMI, COMFORCE,
4 CAROLLO,CDM,and DOES 51-150 and 201-250,and each of them,in the performance of their work
5 on the Project;
6 • negligently and carelessly and recklessly failing to correctly determine the location of the
7 Kinder Pipeline before allowing MOUNTAIN CASCADE and DOES 51-100 and 201-250,and each of
8 them,to excavate in the area of the EBMUD Pipeline and Kinder Pipeline. EBMUD was aware of the
9 incursion of the Kinder Pipeline into the Project as evidenced by the maps created by CAROLLO and
10 CDM, and reviewed by EBMUD. EBMUD reviewed the pot-holing data derived from the field and
11 failed to address the missing data in the vicinity of the offset and failed to request additional data.
12 • negligently and carelessly and recklessly pressuring and requiring MOUNTAIN CASCADE
13 and DOES 51-100 and 201-250, and each of them, to complete their work on the Project in a time
14 frame that was not feasible without endangering the safety of the public and those working on the
15 Project,including ROGER PAASCH;
16 • negligently and carelessly and recklessly failing to create, obtain and/or analyze the proper
17 design maps and field marking data,prior to allowing MOUNTAIN CASCADE and DOES 51-100 and
18 201-250,and each of them,to excavate near the EBMUD Pipeline and Kinder Pipeline;
19 • negligently and carelessly and recklessly failing to obtain the proper permits and other
20 authority to allow for work to be completed by MOUNTAIN CASCADE and DOES 51-150 and 201-
21 250,and each of them,in the vicinity of the Kinder Pipeline and EBMUD Pipeline;
22 • negligently and carelessly and recklessly creating a dangerous condition of public property
23 by performing work, or allowing work to be performed on its behalf, on the Project in the immediate
24 vicinity of the Kinder Pipeline as opposed to another location in the City of Walnut Creek, County of
25 Contra Costa where the Kinder Pipeline was not located;
26 • negligently and carelessly and recklessly failing to require KMEP, SFPP,KMGP,KMI, and
�L-Fl— 27 DOES 101-150, and each of them, to relocate the Kinder Pipeline to a location away from the
ry Y laM
28 immediate vicinity of the EBMUD Pipeline and Project;
-12-
SECOND AMENDED COMPLAINT FOR DAMAGES
I • negligently and carelessly and recklessly failing to notify MOUNTAIN CASCADE and
2 DOES 51-100, and each of them,of concerns by other entities working on the Project or who worked
3 on the project (including among others Modern Continental Construction Co., KMEP, SFPP, KMGP,
4 KMI, and DOES 51-150)regarding the location of the Kinder Pipeline to the vicinity of the EBMUD
5 Pipeline and Project;
6 • negligently and carelessly and recklessly failing to proceed, or requiring MOUNTAIN
7 CASCADE,KMEP,SFPP,KMGP,KMI and DOES 51-150 and 201-250,and each of them,to proceed
8 with the work around the Kinder Pipeline and EBMUD Pipeline through safe and acceptable means;
9 • negligently and carelessly and recklessly.failing to conduct, or requiring MOUNTAIN
10 CASCADE, KMEP, SFPP, KMGP, KMI and DOES 51-150, and each of them, to conduct, daily
11 inspections by a competent individual prior to the start of work and as needed throughout the shift for
12 evidence of a situation that could result in dangerous and ultrahazardous condition, such as that which
13 resulted in the injuries to ROGER PAASCH;and
14 • negligently and carelessly and recklessly failing to remove, or requiring MOUNTAIN
15 CASCADE, KMEP, SFPP,KMGP, KMI and DOES 51-150, and each of them,to remove, individuals
16 working on the Project,including ROGER PAASCH,from the dangerous and ultrahazardous area until
17 necessary precautions had been taken to ensure the safety of those individuals, including ROGER
18 PAASCH.
19 47. EBMUD, and DOES 1-50, inclusive, and each of them, acted negligently, carelessly, and
20 recklessly so as to cause the personal injury to ROGER PAASCH, and to legally cause the injuries and
21 damages described below.
22 48. EBMUD, and DOES 1-50, inclusive, and each of them, knew, or in the exercise of
23 reasonable care should have.known, that the conditions constituted a extremely dangerous condition
24 and unreasonable risk of serious injury or death to those who would foreseeably be in the vicinity of
25 the Project or working on the Project, and that the danger would not be apparent to persons such as
26 ROGER PAASCH. There was a substantial probability that death or serious physical harm could result
a� 27 from the conditions. Under the circumstances of this case involving excavation next to the high-
Mata.
28 pressure Kinder Pipeline,the conduct of EBMUD,and DOES 1-50,inclusive,and each of them,was an
-13-
SECOND AMENDED COMPLAINT FOR DAMAGES
I extreme departure from the ordinary standard of conduct and constitutes gross negligence.
2 49.As a direct and legal result of the negligence and/or gross negligence of EBMUD,and DOES
3 1-50, inclusive, and each of them,ROGER PAASCH,was hurt and injured in his health, strength, and
4 activity.He suffered unjustifiable and substantial physical pain and mental suffering.
5 WHEREFORE,Plaintiff ROGER PAASCH,prays judgment against EBMUD,and DOES 1-50,
6 inclusive,and each of them,as hereinafter set forth.
SECOND CAUSE OF ACTION
7 NEGLIGENCE
AS AGAINST MOUNTAIN CASCADE AND DOES 51-100,INCLUSIVE
8 (By Plaintiff ROGER PAASCH)
9
50.Plaintiff incorporates each and every allegation contained in paragraphs 1 through 49 above,
10
as though fully set forth herein.
11
51. At all times relevant herein, MOUNTAIN CASCADE, and DOES 51-100, inclusive, and
12
each of them, was the general contractor or subcontractor hired by EBMUD for the Project and was
13
14 engaged in the construction,supervision,operation,and control of the Project.
�
52.Because of the dangerous and ultrahazardous nature of the Project and Kinder Pipeline, and
15
the location of the Kinder Pipeline in the vicinity of the EBMUD Pipeline, MOUNTAIN CASCADE
16
and DOES 51-100, inclusive, and each of them, had a nondelegable duty under, among other things,
17
OSHA regulations and California statutes and common law,to supervise, control,operate, survey,and
18
construct the Project in a safe manner to ensure the safety of the public and those working on the
19
Project,including ROGER PAASCH.
20
53.At all relevant times herein,MOUNTAIN CASCADE and DOES 51-100,inclusive,and each
21
of them,breached said nondelegable duty by,among other things:
22
• negligently and carelessly and recklessly hiring, training, retaining, and supervising its
23
employees,representatives, agents and independent contractors in the performance of the work on the
24
Project;
25
• negligently and carelessly and recklessly failing to correctly determine the location of the
26
Kinder Pipeline before excavating in the area,or allowing DOES 201-250 to excavate in the area,of the
�L-Fl- 27
"WL_ EBMUD Pipeline and Kinder Pipeline, pursuant to, among other things, Government Code section
28
-14
SECOND AMENDED COMPLAINT FOR DAMAGES
1 4216.4. MOUNTAIN CASCADE was aware of the incursion of the Kinder Pipeline into the Project,by
2 way of the drawings and plans provided to MOUNTAIN CASCADE by EBMUD;
3 • negligently and carelessly and recklessly attempting, through pressure by and requirements
4 of EBMUD and DOES 1-50,and each of them,to complete the work on the Project in a time frame that
5 was not feasible without endangering the safety of the public and those working on the Project,
6 including ROGER PAASCH;
7 • negligently and carelessly and recklessly failing to create, obtain and/or analyze the proper
8 utility maps showing the location of the Kinder Pipeline, prior to excavating, or allowing DOES 201-
9 250,and each of them,to excavate,near the EBMUD Pipeline and Kinder Pipeline;
10 0 negligently and carelessly and recklessly failing to obtain the proper permits and other
11 authority to allow for work to be completed in the vicinity of the Kinder Pipeline and EBMUD Pipeline;
12 • negligently and carelessly and recklessly failing to require KMEP, SFPP, KMGP and KMI,
13 and DOES 101-150, and each of them, to relocate the Kinder Pipeline to a location away from the
i, 14 immediate vicinity of the Project;
15 • negligently and carelessly and recklessly failing to inquire as to concerns of other entities
16 working on the Project or who worked on the project (including among others Modern Continental
17 Construction Co., EBMUD, KMEP, SFPP, KMGP, KMI and DOES 1-50 and 101-150,and each of
18 them)regarding the location of the Kinder Pipeline to the vicinity of the Project and EBMUD Pipeline;
19 • negligently and carelessly and recklessly failing to proceed with the work around the Kinder
20 Pipeline and EBMUD Pipeline through safe and acceptable means, pursuant to, among other things,
21 Government Code section 4216.4;
22 • negligently and carelessly and recklessly entering into a mutual agreement with KMEP,
23 SFPP,KMGP,and KMI and DOES 101-150,and each of them,allowing for the use of power-operated
24 or power-driven excavating or boring equipment within the vicinity of the Kinder Pipeline and EBMUD
25 Pipeline;
26 • negligently and carelessly and recklessly failing to enter into a mutual agreement with
a laar Flan 27 KMEP, SFPP,KMGP, and KMI and DOES 101-150, and each of them,allowing for the use of power-
at lir
28 operated or power-driven excavating or boring equipment within the vicinity of the Kinder Pipeline and
SECOND AMENDED COMPLAINT FOR DAMAGES
I EBMUD Pipeline;
2 • negligently and carelessly and recklessly failing to conduct daily inspections, or requiring
3 others to conduct, by a competent individual prior to the start of work and as needed throughout the
4 shift for evidence of a situation that could result in a dangerous and ultrahazardous condition, such as
5 the condition resulting in injury to ROGER PAASCH;
6 • negligently and carelessly and recklessly failing to remove, or requiring others to remove,
7 individuals working on the Project, including ROGER PAASCH, from the dangerous .and
8 ultrahazardous area until necessary precautions had been taken to ensure the safety of those
9 individuals,including ROGER PAASCH;
10 negligently and carelessly and recklessly failing to timely contact Underground Service Alert
11 prior to excavating,or allowing excavation,near the Kinder Pipeline and EBMUD Pipeline,pursuant to,
12 among other things,Government Code section 4216.2;
13 • negligently and carelessly and recklessly failing to timely notify Underground Service Alert
14 when the field markings,if any,for the Kinder Pipeline were no longer reasonably visible;
15 • negligently and carelessly and recklessly failing to notify Underground Service Alert of
16 KMEP, SFPP, KMGP, and KMI's, and DOES 101-150, and.each of them, failure to locate and field
17 mark the Kinder Pipeline prior to excavation;
18 • negligently and carelessly and recklessly failing to obtain an inquiry identification number
19 from Underground Service Alert prior to commencing or allowing excavation near the Kinder Pipeline
20 and EBMUD Pipeline pursuant to,among other things,Government Code section 4216.2;and
21 • negligently and carelessly and recklessly failing to obtain a revalidation of the'inquiry
22 identification number from Underground Service Alert after said number expired pursuant to, among
23 other things,Government Code section 4216.2.
24 54. The tortuous conduct alleged above by MOUNTAIN CASCADE, and DOES 101-150,
25 inclusive and each of them, was, among other things, negligent, careless, reckless, grossly negligent
26 and/or despicable, with the despicable conduct being carried on by MOUNTAIN CASCADE, and
_L-R- 27 DOES 51-150, inclusive and each of them, with a willful and conscious disregard of the rights and/or
nrlw
28 safety of others, including but not limited to ROGER PAASCH. Among other things, MOUNTAIN
I�
-16-
SECOND AMENDED COMPLAINT FOR DAMAGES
i�
I CASCADE, and DOES 51-150, inclusive, and each of them, was aware of the probable dangerous
2 consequences of its conduct and willfully and deliberately failed to avoid those consequences, which
3 resulted in the personal injuries to ROGER PAASCH.
4 55. MOUNTAIN CASCADE, and DOES 51-150, inclusive, and each of them, acted so as to
5 cause the personal injury of ROGER PAASCH, and to legally cause the injuries and damages
6 described below.
7 56. MOUNTAIN CASCADE,and DOES 51-150, inclusive, and each of them, knew, or in the
8 exercise of reasonable care should have known,that the conditions constituted a extremely dangerous
9 condition and unreasonable risk of serious injury or death to those who would foreseeably be in the
10 vicinity of the Project or working on the Project, and that the danger would not be apparent to persons
11 such as ROGER PAASCH. MOUNTAIN CASCADE,and DOES 51-150,inclusive,and each of them,
12 willfully and deliberately failed to avoid these consequences or protect others, including ROGER
13 PAASCH, from these consequences. Under the circumstances of this case involving excavation next
14 to the high-pressure Kinder. Pipeline, the conduct of MOUNTAIN CASCADE, and DOES 51-150,
15 inclusive, and each of them, was an extreme departure from the ordinary standard of conduct and
16 constitutes gross negligence,malice,and oppression.
.17 57. As a direct and legal result of the conduct of MOUNTAIN CASCADE, and DOES 51-150,
18 inclusive, and each of them, ROGER PAASCH, was hurt and injured in his health, strength, and
19 activity.He suffered unjustifiable and substantial physical pain and mental suffering.
20 58.The above=alleged acts of MOUNTAIN CASCADE,and DOES 51-150,inclusive,and each
21 of them, were despicable, willful, wanton, malicious, oppressive, and/or fraudulent, and justify an
22 award of punitive damages. At all times mentioned.herein, MOUNTAIN CASCADE, its employees,
23 agents,representatives,independent contractors, and DOES 51-150,inclusive, and each of them were
24 guilty of malice, oppression, fraud, and/or a willful and conscious disregard for the rights of ROGER
25 PAASCH. Given the dangerous and ultrahazardous nature of the work performed on the Project, the
26 Kinder Pipeline,and the close proximity of the Kinder Pipeline to the EBMUD Pipeline,MOUNTAIN
27 CASCADE, its agents, employees, independent contractors, representatives, and DOES 51-150,
n el la«
28 inclusive,and each of them,performed work on the Project with a reckless indifference and willful and
-17-
SECOND AMENDED COMPLAINT FOR DAMAGES
I conscious disregard for the rights of ROGER PAASCH.
2 59. Plaintiff is entitled to punitive damages against MOUNTAIN.CASCADE, and DOES 51-
3 150,.inclusive, and each of them, as corporate defendants because an officer, director or managing
4 agent thereof had advance knowledge of the unfitness of its employees and employed or retained them
5 with a conscious disregard of the rights or safety of others,authorized or ratified the wrongful conduct
6 of its agents,employees, representatives,independent contractors and DOES 51-150 and 201-250,and
7 each of them, who were acting as an officer, director or managing agent of MOUNTAIN CASCADE,
8 and DOES 51-100 and 201-250, and each of them, and which officer, director or managing agent was
9 personally guilty of oppression,fraud and/or malice.
10 WHEREFORE,Plaintiff,ROGER PAASCH,prays judgment against MOUNTAIN CASCADE,
11 and DOES 51-150,inclusive,and each of them,as hereinafter set forth.
12 THIRD CAUSE OF ACTION
NEGLIGENCE
AS AGAINST KMEP,SFPP,KMGP,KMl AND DOES 101-150,INCLUSIVE
13 (By Plaintiff ROGER PAASCH
14
60.Plaintiff incorporates each and every allegation contained in paragraphs 1 through 59 above,
15
as though fully set forth herein.
16
61.At all times relevant herein,KMEP,as a limited partnership, SFPP,a limited partnership and
17
operating partnership of KMEP, KMGP as the general partner of KMEP, and KMI as the parent
18
corporation and owner of KMGP, and DOES 101-150,.inclusive, and each of them, were the owners
19
and operators of the Kinder Pipeline.
20
62.Because of the dangerous and ultrahazardous nature of the Project and the Kinder Pipeline,
21
and the location of the Kinder Pipeline in the vicinity of the EBMUD Pipeline, KMEP, SFPP, KMGP
22
and KMI, and DOES 101-150, inclusive, and.each of them, had a nondelegable duty under, among
23
other things, OSHA regulations and California statutes and common law, to own, supervise, control,
24
survey, and operate the Kinder Pipeline in a safe manner to ensure the safety of the public and those
25
working on the Project,including ROGER PAASCH.
26
63.At all.relevant times herein,KMEP,SFPP,KMGP,and KMI, and DOES 101-150,inclusive,
��. 27
AWL- and each of them,breached said nondelegable duty by,among other things:
28
-18-
SECOND AMENDED COMPLAINT FOR DAMAGES
I • negligently and carelessly and recklessly hiring, training, retaining, and supervising its
2 employees, agents, representatives, and independent contractors, including COMFORCE, in the
3 performance of the work on the Kinder Pipeline in relation to the Project, including but not limited to
4 the determination of the location of the Kinder Pipeline before allowing EBMUD, MOUNTAIN
5 CASCADE, and DOES 1-100 and 201-250, and each of them,to excavate and work in the area of the
6 EBMUD Pipeline and Kinder Pipeline;
7 • negligently and carelessly and recklessly failing to create, obtain and/or analyze the proper
8 utility maps, plans and drawings showing the location of the Kinder Pipeline, prior to allowing .
9 EBMUD,MOUNTAIN CASCADE,and DOES 1-100 and 201-250, and each of them,to excavate and
10 work in the area of the EBMUD Pipeline and Kinder Pipeline;
11 • negligently and carelessly and recklessly failing to obtain the proper permits and other
12 authority to allow for work to be completed in the vicinity of the Kinder Pipeline and EBMUD Pipeline;
13 • negligently and carelessly and recklessly failing to locate and field mark the location of the
iie 14 Kinder Pipeline prior to the excavation by EBMUD, MOUNTAIN CASCADE and DOES 1-100 and
15 201-250, inclusive, and each of them, in violation of, among other things, Government Code section
16 4216.3;
17 • negligently and carelessly and recklessly failing to relocate the Kinder Pipeline to a location
18 away from the immediate vicinity of the Project and EBMUD Pipeline;
19 • negligently and carelessly and recklessly failing to address the concerns of entities working
20 on the Project or who worked on the project (including among others Modern Continental
21 Construction Co., EBMUD, and DOES 1-50, and each of them)regarding the location of the Kinder
22 Pipeline to the vicinity of the EBMUD Pipeline, and failing to inform MOUNTAIN CASCADE and
23 DOES 51-100 and 201-250,and each of them,of these concerns;
24 • negligently and carelessly and recklessly entering into a mutual agreement with
25 MOUNTAIN CASCADE,EBMUD and DOES 1-100 and 201-250,and each of them,allowing the use
26 of power-operated or power-driven excavating or boring equipment within the vicinity of the Kinder
A�� 27 Pipeline and Project;and
28 • negligently and carelessly and recklessly failing to inspect,or failing to inspect as frequently
-19-
SECOND AMENDED COMPLAINT FOR DAMAGES
I as necessary, the Kinder Pipeline during work on the Project where, through contact with EBMUD,and
2 others (including Modern Continental Construction, EBMUD, and DOES 1-100, and each of them,)
3 KMEP, SFPP,KMGP and KMI, and DOES 101-150, and each of them,knew or should have known,
4 that the Kinder Pipeline could be damaged by excavation work for the Project.
5 64. The ortuous conduct alleged above by KMEP, SFPP, KMGP, KMI, and DOES 101-150,
6 inclusive and each of them, was, among other things, negligent, careless, reckless, grossly negligent
7 and/or despicable, with the despicable conduct being carried on by KMEP, SFPP, KMGP, KMI, and
8 DOES 101-150,inclusive and each of them,with a willful and conscious disregard of the rights and/or
9 safety of others, including but not limited to ROGER PAASCH. Among other things, KMEP, SFPP,
10 KMGP, KMI, and DOES 101-150, inclusive, and each of them, was aware of the probable dangerous
11 consequences of its conduct and willfully and deliberately failed to avoid those consequences, which
12 resulted in the personal injuries of ROGER PAASCH.
13 65.KMEP, SFPP,KMGP,and KMI,and DOES 101-150, inclusive, and each of them, acted so
14 as to cause the personal injury of ROGER PAASCH, and to legally cause the injuries and damages
15 described below.
16 66.KMEP, SFPP,KMGP,and KMI,and DOES 101-150,inclusive,and each of them,knew,or
17 in the exercise of reasonable care should have known, that the conditions constituted an extremely
18 dangerous condition and unreasonable risk of serious injury or death to those who would foreseeably
19 be in the vicinity of or working on the Project,Kinder Pipeline or EBMUD Pipeline,and that the danger
20 would not be apparent to those persons,such as ROGER PAASCH. KMEP, SFPP,KMGP,KMI, and
21 DOES 101-150, inclusive, and each of them, willfully and deliberately failed to avoid these
22 consequences or protect others, including ROGER PAASCH, from these consequences. Under the
23 circumstances of this case involving excavation next to the high-pressure Kinder Pipeline,the conduct
24 of KMEP, SFPP, KMGP, and KMI, and DOES 101-150, inclusive, and each of them, was an extreme
25 departure from the ordinary standard of conduct, and constitutes gross negligence, malice, and
26 oppression.
¢L-Firm 27 67. As a direct and legal result of the alleged conduct of KMEP, SFPP, KMGP, and KMI, and
„d u.
28 DOES 101-150, inclusive, and each of them, ROGER PAASCH, was hurt and injured in his health,
-20-
SECOND AMENDED COMPLAINT FOR DAMAGES
I strength,and activity.He suffered unjustifiable and substantial physical pain and mental suffering.
2 68. As a further direct and legal result of the alleged conduct of KMEP, SFPP, KMGP, and
3 KMI,and DOES 101-150, inclusive, and each of them, ROGER PAASCH was hurt and injured in his
4 health, strength, and activity. He suffered unjustifiable and substantial physical pain and mental
5 suffering. The above-alleged acts of KMEP, SFPP, KMGP, and KMI, and DOES 101-150, inclusive,
6 and each of them, were willful, wanton, malicious, oppressive, despicable, and/or fraudulent, and
7 justify an award of punitive damages. At all times mentioned herein,KMEP, SFPP,KMGP,and KMI,
.8 its employees, agents, representatives, independent contractors, and DOES 101-150, inclusive, and
9. each of them were guilty of malice, oppression, fraud, and/or a willful and conscious disregard for the
10 rights of ROGER PAASCH. Given the dangerous and ultrahazardous nature of the work performed on
11 the Project,the Kinder Pipeline,and the close proximity of the Kinder Pipeline to the EBMUD Pipeline,
12 KMEP, SFPP, KMGP, and KMI, its agents, employees, independent contractors, representatives, and
13 DOES 101-150,inclusive,and each of them,performed work on the Project with a reckless indifference
14 and willful and conscious disregard for the rights of ROGER PAASCH.
15 69.Plaintiff is entitled to punitive damages against KMEP, SFPP,KMGP,and KMI,and DOES
16 101-150, inclusive,and each of them, as corporate defendants because an officer,director or managing
17 agent thereof had advance knowledge of the unfitness of its employees and employed or retained them
18 with a conscious disregard of the rights or safety of others,authorized or ratified the wrongful conduct
19 of its agents, employees, representatives, independent contractors, who were acting as an officer,
20 director or managing agent of KMEP,SFPP,KMGP,and KMI,and DOES 101-150, and each of them,
21 and which officer,director or managing agent was personally guilty of oppression,fraud and/or malice.
22 WHEREFORE, Plaintiff ROGER PAASCH, prays judgment against KMEP, SFPP,.KMGP,
23 and KMI,and DOES 101-150,inclusive,and each of them,as hereinafter set forth.
24
25 FOURTH CAUSE OF ACTION
NEGLIGENCE
26 AS AGAINST COMFORCE AND DOES 101-150,INCLUSIVE
(By Plaintiff ROGER PAASCH)
�L.� 27
28 70.Plaintiff incorporates each and every allegation contained in paragraphs 1 through 69 above,
-21-
SECOND AMENDED COMPLAINT FOR DAMAGES
I as though fully set forth herein.
2 71.Because of the dangerous and ultrahazardous nature of the Project and the Kinder Pipeline,
3 and the location of the Kinder Pipeline in the vicinity of the EBMUD Pipeline, COMFORCE, and
4 DOES 101-150, inclusive, and each of them, had a nondelegable duty under, among other things,
5 OSHA regulations and California statutes and common law, to own, supervise, control, survey, and
6 operate the Kinder Pipeline in a safe manner to ensure the safety of the public and those working on the
7 Project,including ROGER PAASCH.
8 72.At all relevant times herein,COMFORCE,and DOES 101-150,inclusive,and each of them,
9 breached said nondelegable duty by,among other things:
10 • negligently and carelessly and recklessly hiring, training, retaining, and supervising its
11 employees,agents,representatives,and independent contractors in the performance of the work on the
12 Kinder Pipeline in relation to the Project, including but not limited to the determination of the location
13 of the Kinder Pipeline before allowing EBMUD, MOUNTAIN CASCADE, and DOES 1-100 and 201-
E� 14 250,and each of them,to excavate and work in the area of the EBMUD Pipeline and Kinder Pipeline;
15 • negligently and carelessly and recklessly failing to create, obtain and/or analyze the proper
16 utility maps, plans and drawings showing the location of the Kinder Pipeline, prior to allowing
17 EBMUD,MOUNTAIN CASCADE,and DOES 1-100 and 201-250, and each of them,to excavate and
18 work in the area of the EBMUD Pipeline and Kinder Pipeline;
19 • negligently and carelessly and recklessly failing to obtain the proper permits and other
20 authority to allow for work to be completed in the vicinity of the Kinder Pipeline and EBMUD Pipeline;
21 • negligently and carelessly and recklessly failing to locate and field mark the location of the
22 Kinder Pipeline prior to the excavation by EBMUD, MOUNTAIN CASCADE and DOES 1-100 and
23 201-250, inclusive, and each of them, in violation of, among other things, Government Code section
24 4216.3;and
25 • negligently and carelessly and recklessly failing to inspect,or failing to inspect as frequently
26 as necessary,the Kinder Pipeline during work on the Project where,through contact with EBMUD and
L-Fl- 27 others (including Modern Continental Construction, EBMUD, and DOES 1-100, and each of them,)
28 COMFORCE and DOES 101-150, and each of them, knew or should have known, that the Kinder
-22-
SECOND AMENDED COMPLAINT FOR DAMAGES
t.�
I Pipeline could be damaged by excavation work for the Project.
2 73. The tortious conduct alleged above by COMFORCE, and DOES 101-150, inclusive and
3 each of them, was, among other things, negligent, careless, reckless, grossly negligent and/or
4 despicable, with the despicable conduct being carried on by COMFORCE, and DOES 101-150,
5 inclusive and each of them,with a willful and conscious disregard of the rights and/or safety of others,
6 including but not limited to ROGER PAASCH. Among other things, COMFORCE, and DOES 101-
7 150, inclusive, and each of them, was aware of the probable dangerous consequences of its conduct
8 and willfully and deliberately failed to avoid those consequences,which resulted in the personal injuries
9 of ROGER PAASCH.
10 74. COMFORCE, and DOES 101-150, inclusive, and each of them, acted so as to cause the
11 personal injury of ROGER PAASCH,and to legally cause the injuries and damages described below.
12 75. COMFORCE, and DOES 101-150, inclusive, and each of them,knew, or in the exercise of
13 reasonable care should have known, that the conditions constituted an extremely dangerous condition
f 14 and unreasonable risk of serious injury or death to those who would foreseeably be in the vicinity of or
15 working on the Project, Kinder Pipeline or EBMUD Pipeline, and that the danger would not be
16 apparent to those persons, such as ROGER PAASCH. COMFORCE, and DOES 101-150, inclusive,
17 and each of them, willfully and deliberately failed to avoid these consequences or protect others,
18 including ROGER PAASCH, from these consequences. Under the circumstances of this case
19 involving excavation next to the high-pressure Kinder Pipeline, the conduct of COMFORCE, and
20 DOES 101-150, inclusive, and each of them,was an extreme departure from the ordinary standard of
21 conduct,and constitutes gross negligence,malice,and oppression.
22 76. As a direct and legal result of the alleged conduct of COMFORCE, and DOES 101-150,
23 inclusive, and each of them, ROGER PAASCH was hurt and injured in his health, strength, and
24 activity.He suffered unjustifiable and substantial physical pain and mental suffering.
25 77. The above-alleged acts of COMFORCE, and DOES 101-150, inclusive, and each of them,
26 were willful, wanton, malicious, oppressive, despicable, and/or fraudulent, and justify an award of
a� 27 punitive damages. At all times mentioned herein,COMFORCE,its employees,agents,representatives,
28 independent contractors, and DOES 101-150, inclusive, and each of them were guilty of malice,
-23-
SECOND AMENDED COMPLAINT FOR DAMAGES
I oppression, fraud,and/or a willful and conscious disregard for the rights of ROGER PAASCH. Given
2 the dangerous and ultrahazardous nature of the work performed on the Project, the Kinder Pipeline,
3 and the close proximity of the Kinder Pipeline to the EBMUD Pipeline, COMFORCE, its agents,
4 employees, independent contractors,representatives, and DOES 101-150, inclusive, and each of them,
5 performed work on the Project with a reckless indifference and willful and conscious disregard for the
6 rights of ROGER PAASCH.
7 78.Plaintiff is entitled to punitive damages against COMFORCE,and DOES 101-150,inclusive,
8 and each of them, as corporate defendants because an officer, director or managing agent thereof had
9 advance knowledge of the unfitness of its employees and employed or retained them with a conscious
10 disregard of the rights or safety of others, authorized or ratified the wrongful conduct of its agents,
11 employees, representatives, independent contractors, who were acting as an officer, director or
12 managing agent of COMFORCE,and DOES 101-150,and each of them,and which officer, director or
13 managing agent was personally guilty of oppression,fraud and/or malice.
t� 14 WHEREFORE, Plaintiff ROGER PAASCH prays judgment against COMFORCE, and
15 DOES 101-150,inclusive,and each of them,as hereinafter set forth.
FIFTH CAUSE OF ACTION
16 NEGLIGENCE
AS AGAINST CAROLLO AND CDM AND DOES 1-50,INCLUSIVE
17 (By Plaintiff ROGER PAASCH)
18
79.Plaintiff incorporate each and every allegation contained in paragraphs 1 through 78 above,
19
as though fully set forth herein.
20
80.At all times relevant herein, CAROLLO and CDM, and DOES 1-50, inclusive, and each of
21
them,were engaged in the business of planning and designing the Project. CAROLLO and CDM, and
22
DOES 1-50,inclusive,and each of them,provided their drawings and plans to,among others,EBMUD.
23
81.Because of the dangerous and ultrahazardous nature of the Project,the Kinder Pipeline and
24
contents thereof, and the location of the Kinder Pipeline in the vicinity of the EBMUD Pipeline and the
25
Project,CAROLLO and CDM, and DOES 1-50,inclusive,and each of them,had a nondelegable duty
26 .
under, among other things, OSHA regulations and California statutes and common law, to plan and
� .. 27
design the Project in a safe manner to ensure the safety of the public and those working on the Project,
i
28
-24-
SECOND
24SECOND AMENDED COWLAW FOR DAMAGES
I including ROGER PAASCH.
2 82. At all relevant times herein, CAROLLO and CDM,and DOES 1-50,inclusive,and each of
3 them breached said nondelegable duty by,among other things:
4 • negligently and carelessly preparing and designing the plans and maps for the Project.
5 CAROLLO and CDM, and DOES 51-50, inclusive, and each of them, were aware of the incursion of
6 the Kinder Pipeline into the Project's path,as evidenced by their drawings;
7 • negligently and carelessly failing to evaluate the need for re-design of the Project at the time
8 they; and each of them, became aware of and discovered the proximity of the Kinder Pipeline to the
9 proposed EBMUD pipeline,and the incursion of the Kinder Pipeline into the Project;
10 • negligently and carelessly failing to address missing data or request additional data after
11 reviewing the pot-holing data derived from field data in the vicinity of station 100+15;
12 • with respect to CDM,and DOES 1-50,and each of them,negligently and carelessly entering
13 into a subcontract with CAROLLO regarding the portion of the Project at issue in this lawsuit;
1
10 14 • with respect to CDM and DOES 1-50, and each of them, negligently and carelessly
15 supervising CAROLLO regarding its work on the portion of the Project at issue in this lawsuit.
16 83. The tortuous conduct alleged above by CAROLLO and CDM, and DOES 1-50, inclusive
17 and each of them,was,among other things,negligent,careless conduct being carried on by CAROLLO
18 and CDM, and DOES 1-50, inclusive. Among other things, CAROLLO and CDM, and DOES 1-50,
19 inclusive, and each of them, was aware of the probable dangerous consequences of its conduct and
20 negligently failed to avoid those consequences, which resulted in the personal injuries of ROGER
21 PAASCH.
22 84. CAROLLO and CDM, and DOES 1-50, inclusive, and each of them, acted so as to cause
23 the personal injury of ROGER PAASCH, and to legally cause the injuries and damages described
24 below.
25 85. CAROLLO and CDM, and DOES 1-50, inclusive, and each of them, knew, or in the
26 exercise of reasonable care should have known,that the conditions constituted an extremely dangerous
_L-Fl— 27 condition and unreasonable risk of serious injury or death to those who would foreseeably be in the
28 vicinity of or working on the Project,Kinder Pipeline or EBMUD Pipeline, and that the danger would
-25-
SECOND AMENDED COMPLAINT FOR DAMAGES
I not be apparent to those persons, such as ROGER PAASCH. CAROLLO and CDM, and DOES 1-50,
2 inclusive,and each of them,negligently failed to avoid these consequences or protect others,including
3 ROGER PAASCH, from these consequences.
4 86.As a direct and legal result of the alleged conduct of CAROLLO and CDM,and DOES 1-50,
5 inclusive, and each of them, ROGER PAASCH, was hurt and injured in his health, strength, and
6 activity.He suffered unjustifiable and substantial physical pain and mental suffering.
7 WHEREFORE,Plaintiff ROGER PAASCH prays judgment against CAROLLO and CDM,and
8 DOES 1-50,inclusive,and each of them,as hereinafter set forth.
SIXTH CAUSE OF ACTION
9 STRICT LIABILITY
AS AGAINST KMEP,SFPP,KMGP,KMI AND DOES 101-150,INCLUSIVE
10 (By Plaintiff ROGER PAASCH)
11
87.Plaintiff,incorporates each and every allegation contained in paragraphs I through 86 above,
12
as though fully set forth herein.
13
14 88.KMEP, SFPP,KMGP,and KMI,and DOES 101-150,inclusive,and each of them,designed,
manufactured, sold, owned, controlled, operated, maintained, inspected, distributed, transported,
15
located, field marked, monitored, and managed the Kinder Pipeline and ultrahazardous and flammable
16
material contained therein.
17
89. Such activities create the existence of a high degree of risk of harm to persons, land and
18
personal property of others, create the likelihood that harm that results from it will be great, and are
19
inappropriate to the surrounding of residential neighborhoods, schools and highly-populated
20
communities where it was carried on,such that their value to such communities is outweighed by their
21
dangerous attributes.
22
90. Because of the dangerous and ultrahazardous nature and condition of the Kinder Pipeline
23
and contents contained therein, and the location of the Kinder Pipeline in the vicinity of the EBMUD
24
Pipeline and Project,KMEP, SFPP,KMGP and KMI,and DOES 101-150,inclusive,and each of them,
25
had a nondelegable duty to own, supervise, control, operate, manage, locate, field mark, monitor, and
26
inspect the Kinder Pipeline accurately and in a safe manner to ensure the safety of the public and those
a 27
working on the Project, including ROGER PAASCH.
28 -26-
SECOND AMENDED COMPLAINT FOR DAMAGES
1 91. As set forth above, ROGER PAASCH was injured while working on the Project and
2 EBMUD Pipeline. The activities of KMEP, SFPP,KMGP and KMI, and DOES 101-150, and each of
3 them, were a substantial factor in causing the injury of ROGER PAASCH. The harm to ROGER
4 PAASCH was of the kind that would be anticipated as a result of the risk created by owning,
5 supervising, controlling, operating, managing, locating, field marking, monitoring, and inspecting the
6 Kinder Pipeline through a residential neighborhood, near a school and through a highly-populated
7 community.
8 92. KMEP, SFPP, KMGP, and KMI, and DOES 101-150, inclusive, and each of them, caused
9 the personal injury of ROGER PAASCH,and legally caused the injuries and damages described below.
10 93. As a direct and legal result of the dangerous and ultrahazardous conditions designed,
11 manufactured, sold, owned, controlled, operated, maintained, inspected, distributed, transported ,
12 located, field marked, monitored, and managed by KMEP, SFPP, KMGP, and KMI, and DOES 101-
13 150, inclusive, and each of them, ROGER PAASCH, was hurt and injured in his health, strength,and
(� 14 activity.He suffered unjustifiable and substantial physical pain and mental suffering.
15 94. The above-alleged acts of KMEP, SFPP, KMGP, and KMI, and DOES 101-150, inclusive,
16 and each of them, were willful, wanton, malicious, despicable, oppressive, and/or fraudulent, and
17 justify an award of punitive damages. At all times mentioned herein,KMEP, SFPP,KMGP,and KMI,
18 its employees, agents, representatives, independent contractors, and DOES 101-150, inclusive, and
19 each of them were guilty of malice, oppression, fraud, and/or a willful and conscious disregard for the
20 rights'of ROGER PAASCH. Given the dangerous and ultrahazardous nature of the work performed on
21 the Project,the Kinder Pipeline,and the close proximity of the Kinder Pipeline to the EBMUD Pipeline,
22 KMEP, SFPP, KMGP, and KMI, its agents, employees, independent contractors, representatives, and
23 DOES 101-150,inclusive,and each of them,performed work on the Project with a reckless indifference
24 and willful and conscious disregard for the rights of ROGER PAASCH.
25 95.Plaintiff is entitled to punitive damages against KMEP,SFPP,KMGP,and KMI,and DOES
26 101-150, inclusive,and each of them,as corporate defendants because an officer,director or managing
_L-F— 27 agent thereof had advance knowledge of the unfitness of its employees and employed or retained them
28 with a conscious disregard of the rights or safety of others, authorized or ratified the wrongful conduct
1. -27-
SECOND AMENDED COMPLAINT FOR DAMAGES
r�
I of its agents, employees, representatives, independent contractors who were acting as an officer,
2 director or managing agent of KMEP,SFPP,KMGP, and KMI,and DOES 101-150,and each of them,
3 and which officer,director or managing agent was personally guilty of oppression,fraud and/or malice.
4 WHEREFORE,Plaintiff ROGER PAASCH prays judgment against KMEP, SFPP,KMGP,and
5 KMI,and DOES 101-150,inclusive,and each of them,as hereinafter set forth.
SEVENTH CAUSE OF ACTION
6 PREMISES LIABILITY
AS AGAINST MOUNTAIN CASCADE,AND DOES 51-100,INCLUSIVE
7 (By Plaintiff ROGER PAASCH)
8
96.Plaintiff'incorporates each and every allegation contained in paragraphs 1 through 95 above,
9
as though fully set forth herein.
10
97.MOUNTAIN CASCADE,and DOES 51-100,and each of them, occupied and/or controlled
11
the premises in which the EBMUD Pipeline was being excavated.
12
98.The real property contained a hidden condition or conditions which created an unreasonable
13
risk of harm to the public and those working on the Project,including ROGER PAASCH.
1� 14
99. MOUNTAIN CASCADE, and DOES 51-100, and each of them, knew or should have
15
known about such condition or conditions, and failed to make reasonable inspections to discover such
16
condition or conditions.
17
100.MOUNTAIN CASCADE, and DOES 51-100, and each of them, failed to take reasonable
18
precautions to protect against the condition and the harm likely to result therefrom, and/or give
19
adequate warning to those likely to be injured by the condition.
20
101.As a direct and legal result of the conduct of MOUNTAIN CASCADE,and DOES 51-100,
21
inclusive, and each of them, ROGER PAASCH was hurt and injured in his health, strength, and
22
activity. He suffered unjustifiable and substantial physical pain and mental suffering.
23
102.As a further direct and legal result of the conduct of MOUNTAIN CASCADE, and DOES
24
51-100, inclusive, and each of them, ROGER PAASCH was hurt and injured in his health, strength,
25
and activity. He suffered unjustifiable and substantial physical pain and mental suffering. The above-
26
alleged acts of MOUNTAIN CASCADE,and DOES 51-100,inclusive,and each of them,were willful,
_U.� 27
AdL— wanton,malicious oppressive,despicable,and/or fraudulent and justify an award of punitive damages.
28
` -28-
SECOND AMENDED COMPLAINT FOR DAMAGES
I At all times mentioned herein, MOUNTAIN CASCADE, its employees, agents, representatives,
2 independent contractors, and DOES 51-100, inclusive, and each of them were guilty of malice,
3 oppression, fraud, and/or a willful and conscious disregard for the rights of ROGER PAASCH. Given
4 the dangerous and ultrahazardous nature of the work performed on the Project, the Kinder Pipeline,
5 and the close proximity of the Kinder Pipeline to the EBMUD Pipeline, MOUNTAIN CASCADE, its
6 agents, employees, independent contractors,representatives, and DOES 51-100,inclusive, and each of
7 them, performed work on the Project with a reckless indifference and willful and conscious disregard
8 for the rights of ROGER PAASCH.
9 103. Plaintiff is entitled to punitive damages against MOUNTAIN CASCADE, and DOES 51-
10 100, inclusive, and each of them, as corporate defendants because an officer, director or managing
11 agent thereof had advance knowledge of the unfitness of its employees and employed or retained them
12 with a conscious disregard of the rights or safety of others,authorized or ratified the wrongful conduct
13 of its agents, employees, representatives, independent contractors and DOES 51-100, and each of
14 them, who were acting as an officer, director or managing agent of MOUNTAIN CASCADE and
15 DOES 51-100, and each of them, and which officer, director or managing agent was personally guilty
16 of oppression,fraud and/or malice.
17 WHEREFORE, Plaintiff ROGER PAASCH prays judgment against MOUNTAIN CASCADE,
18 and DOES 51-100, inclusive,and each of them,as hereinafter set forth.
19
20
EIGHTH CAUSE OF ACTION
21 WILLFUL MISCONDUCT
AGAINST KMEP, SFPP, KMGP, KMI,AND.DOES 51-150, INCLUSIVE
22 (By Plaintiff ROGER PAASCH)
23
104.Plaintiffs,and each of them,incorporate each and every allegation contained in
24
paragraphs 1 through 103 above,as though fully set forth herein.
25
105.KMEP,-SFPP,KMGP,KMI,and DOES 51-150,and each of them,knew that construction
26
workers were excavating a trench in connection with the Project, in accordance with the written
aU.Fl�,, 27
"`A`" contract between EBMUD and MOUNTAIN CASCADE,and DOES 1-100, and each of them. KMEP,
28
-29-
SECOND AMENDED COMPLAINT FOR DAMAGES
I SFPP,KMGP,KMI,and DOES 51-150,and each of them,knew that the route of the EBMUD Pipeline
2 was to be parallel to,east of and above the Kinder Pipeline,which was owned and operated by KMEP,
3 SFPP,KMGP,KMI and DOES 51-150,and each of them.
4 106. KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, were the operators or
5 owners of a subsurface installation within the meaning of Government Code section 4216.
6 107. KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, knew that EBMUD's
7 contract with MOUNTAIN CASCADE, and DOES 51-100, and each of them, required compliance
8 with all applicable statutes,laws,regulations,orders and standards.
9 108. KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, knew that to guard
10 against extreme risk of injury to persons and property,including those working on the Project such as
11 Plaintiff ROGER PAASCH, the contract between EBMUD and MOUNTAIN CASCADE, and DOES
12 51-100, specified, among other things, that work along South Broadway in Walnut Creek, California
13 was adjacent to the Kinder Pipeline, that construction activities should be coordinated with, among
(0 14 others; Larry Hosler, manager pipeline maintenance and Roy Bridge, manager pipeline safety, for
15 KMEP,SFPP,KMGP,KMI,and DOES 51-150,and MOUNTAIN CASCADE.
16 109. KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, knew that the Kinder
17 Pipeline to be properly located in advance of excavation to avoid any physical contact with the Kinder
18 Pipeline as a result of any construction activities.
19 110. KMEP, SFPP, KMGP, KMI,and DOES 51-150, and each of them, were aware of their
20 respective responsibilities under, among other things, the Government Code and Code of Regulations
21 to properly plan and design the Project and determine the location of and properly field mark the
22 Kinder Pipeline to allow for safe excavation in the vicinity thereof.
23 111. KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, knew that operating,
24 locating, field marking,and excavating in the vicinity of the Kinder Pipeline created the existence of a
25 special, high degree of risk of harm to persons and property, including those working on the Project
26 with welding tools, such as Plaintiff ROGER PAASCH. KMEP, SFPP, KMGP, KMI, and DOES 51-
_L—Fft 27 150, and each of them, knew that Matamoros Pipeline, Inc., and its employees including Plaintiff
Ia M LOw
28 ROGER PAASCH,were using welding instruments to weld the EBMUD Pipeline, which considerably
-30-
SECOND AMENDED COMPLAINT FOR DAMAGES
I increased the extreme risk of harm due to highly flammable nature of the contents of the Kinder
2 Pipeline.
3 112. KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, knew that those
4 working on the Project, including plaintiff ROGER PAASCH, would rely on, among others, KMEP,
5 SFPP, KMGP, KMI, and DOES 51-150, and each of them, for their safety to properly design, plan,
6 locate, field mark, and excavate in the vicinity of the Kinder Pipeline in compliance with state laws,
7 statutes,orders,and regulations.
8 113.KMEP, SFPP,KMGP,KMI,and DOES 51-150,and each of them,has experienced several
9 accidents relating to its pipelines, including but not limited to those incidents referenced in the General
10 Allegations set forth above. KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, have
11 experienced at least 44 accidents relating to its pipelines since January 1,2003. Of these 44 accidents,at
12 least 14 resulted in releases of more than five barrels of refined petroleum products into the surrounding
13 environment. At least 8 known accidents resulting in releases into the surrounding environment have
(� 14 occurred since April 27, 2004. All 8 of these accidents occurred in or near high consequence areas (as
.15 defined in 49 C.F.R. section 195.450)and/or major transportation corridors. Of these 8 accidents, 5 are
16 attributed to outside force damage (e.g. third party damage caused by an excavator or other source,
17 damage caused during construction, etc.) At least 3 of these 5 instances went unaddressed by KMEP,
18 SFPP,KMGP, KMI,and DOES 51-150, and each of them, for an indeterminate period despite internal
19 inspection tool runs conducted on the pipelines prior to the accidents.Approximately 50%of reported
20 hazardous liquid pipeline accidents suffered by KMEP, SFPP, KMGP, KMI, and DOES 51-150, and
21 each of them,between 1998 and 2003 were caused by outside forces.
22 114. According to the United States Department of Transportation's "Pipeline and Hazardous
23 Materials Safety Administration," the recent accidents of KMEP, SFPP, KMGP, KMI, and DOES 51-
24 150, and each of them, indicate a "widespread failure to adequately detect and address the effects of
25 outside force damage and corrosion.This failure has systematically affected the integrity of the Pacific
26 Operations Unit." This pattern and practice of KMEP, SFPP, KMGP, KMI, and DOES 51-150, and
QwF— 27 each of them,is one to put profits over people, in that KMEP, SFPP, KMGP, KMI,and DOES 51-150,
n r tar
28 and each of them,believe that few adverse consequences will result from its failures to avoid accidents
-31-
SECOND AMENDED COMPLAINT FOR DAMAGES
I involving the pipelines.This systematic failure flows from the top on down through the corporate levels
2 of KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, and includes those decision
3 making individuals including the officers, directors and managing agents of KMEP, SFPP, KMGP,
4 KMI,and DOES 51-150,and each of them.
5 115. KMEP,SFPP,KMGP,KMI, and DOES 51-150, and each of them, additionally knew that
6 in the six years prior to November 9, 2004,MOUNTAIN CASCADE,and DOES 51-100, and each of
7 them,accumulated several safety violations,and was issued several citations from California OSHA for
8 workplace accidents, including but not limited to,the death a worker when a pipe fell on him in March
9 of 2004, the deathof a worker when a crane he tried to operate without training collapsed and smashed
10 him against a pipe, severe lung damage suffered by three workers when poisonous gases overcame
11 them in a sewer in which they were working, and the personal injury of a worker when his leg was
12 crushed between two water trucks. KMEP, SFPP,KMGP,KMI,and DOES 51-150,and each of them,
13 additionally knew that MOUNTAIN CASCADE, and DOES 51-100, were also the subject of several
14 civil lawsuits involving wrongful death,as well as criminal prosecutions.
15 116. KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, knew that the initial
16 contract with EBMUD was awarded to Modern Continental Co., which contract was terminated by
17 EBMUD. KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, knew that in or about
18 2003 or 2004,Modern Continental Co. was excavating for the EBMUD Pipeline and determined that a
19 segment of the Kinder Pipeline was approximately 13 feet from where it had been field marked by
20 KMEP,SFPP,KMGP,KMI,and DOES 101-150,and each of them.Modern Continental Co.expressed
21 this concern to, among others, EBMUD, KMEP, SFPP, KMGP, KMI, COMFORCE, and DOES 1-50
22 and 101-150, and each of them. In addition, in or about August of 2003, EBMUD requested that
23 KMEP, SFPP, KMGP, KMI, and DOES 101-150, and each of them, relocate a section of the Kinder
24 Pipeline because it was, among other things, hard to locate and a hindrance to completion of the
25 Project.In or about early 2004,Modern Continental,EBMUD,and DOES 1-50,and each of them,were
26 extremely concerned about the location of the Kinder Pipeline because it was still in the way of the
a lar Nm 27 excavation for the EBMUD Pipeline and Project. Among others, Modern Continental, EBMUD,
ry 1lwr
28 KMEP, SFPP,KMGP,KMI, and DOES 1-150,and each of them,discussed in early 2003 the location
-32-
SECOND AMENDED COMPLAINT FOR DAMAGES
I of the Kinder Pipeline and how to continue working on the Project despite the location of the Kinder
2 Pipeline.
3 117. KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, knew that prior to
4 November 9, 2004, EBMUD awarded its contract to MOUNTAIN CASCADE, who advertises that it
5 "routinely take[s] on tough projects that our competitors shy away from and turn them into profit,"and
6 that the foundation of its success is built on its dedication to"knowledge,integrity,quality and superior
7 service."KMEP, SFPP, KMGP, KMI,and DOES 51-150, and each of them,knew that KMEP, SFPP,
8 KMGP, KMI and DOES 101-150, and each of them, had numerous recent accidents involving its
9 pipelines, and that MOUNTAIN CASCADE and DOES 51-100, and each of them, had numerous .
10 recent workplace injuries.
11 118.Because of the construction work in the direct vicinity of the high pressure Kinder Pipeline,
12 KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,knew that it had to guard against the
13 extreme risk of injury to persons and/or property in the area, including those persons working on the
14 Project along with the general public. KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of
15 them, knew that construction activities were to be coordinated with all parties participating in the
16 Project.
17 119. KMEP, SFPP,KMGP,KMI,and DOES 51-150,and each of them,knew of the peril of an
18 explosion if the flammable liquids or gasses inside the Kinder.Pipeline escaped in the vicinity of the
19 construction of the EBMUD Pipeline where workers, including MIGUEL REYES, deceased, worked
20 with welding tools. KMEP, SFPP, KMGP,KMI, COMFORCE, and DOES 51-150, and each of them,
21 knew that the injuries of RAGER PAASCH, was a probable, as opposed to possible, result of that
22 danger, as plaintiff ROGER PAASCH, was working inside the EBMUD Pipeline using welding tools,
23 and had no means of making an easy or fast escape in the event of an explosion and thus would be
24 trapped inside the EBMUD Pipeline for a period of time.
25 120. At all relevant.times herein, KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of
26 them, intentionally, knowingly, deliberately, and/or consciously failed to avoid the above referenced
_L•W. 27 peril by,among other things:
28 • failing to hire, train, retain and supervise its employees, representatives, agents and
t. -33-
SECOND AMENDED COMPLAINT FOR DAMAGES
I,
I independent contractors with respect to the performance of the work on the Project. For example,
2 employees lacked the experience and knowledge to read the maps and drawings showing the location
3 of the Kinder Pipeline, and in fact, failed to even review such maps and drawings. KMEP, SFPP,
4 KMGP, KMI, and DOES 51-150, and each of them, failed to train its employees with respect to the
5 importance of reviewing and analyzing the necessary maps and drawings to determine the accurate
6 location of the Kinder Pipeline,and how to review and analyze such drawings and maps;
7 • failing to correctly determine the location of the Kinder Pipeline before allowing excavation
8 in the area of the EBMUD Pipeline and Kinder Pipeline,pursuant to,among other things,Government
9 Code section 4216.4.Among others,Mike Biggs,Peter Brooks, and Mark Presley failed to review and
10 analyze the maps and drawings, and instead relied on their visual observation that there was no tree in
I 1 the area of the Kinder Pipeline. In fact, the tree had been removed years prior but the roots still existed
12 and the offset of the Kinder Pipeline was present;
13 • failing to create,obtain and/or analyze the proper utility maps, plans and drawings showing
1 14 the location of the Kinder Pipeline,prior to allowing EBMUD,
15 • MOUNTAIN CASCADE,and DOES 1-100 and 201-250,and each of them, to excavate and
16 work in the area of the EBMUD Pipeline and Kinder Pipeline;
17 • failing to relocate the Kinder Pipeline to a location away from the immediate vicinity of the
18 Project and EBMUD Pipeline after concerns were previously brought forth by,among others,EBMUD
19 and Modern Continental regarding the location of the Kinder Pipeline to the EBMUD Pipeline and
20 Project.
21 • failing to address the concerns of entities working on the Project or who worked on the
22 project(including among others Modern Continental Construction Co.,EBMUD, and DOES 1-50, and
23 each of them)regarding the location of the Kinder Pipeline to the vicinity of the EBMUD Pipeline, and
24 failing to inform MOUNTAIN CASCADE and DOES 51-100 and 201-250, and each of them, of these
25 concerns;
26 • falsely representing to MOUNTAIN CASCADE, EBMUD and others the location of the
_�-Fh- 27 Kinder Pipeline,such that Mike Biggs,Mark Presley and Peter Brooks stated to EBMUD,MOUNTAIN
n a Lar
28 CASCADE,and others that the field marking was accurate, that excavators need only follow the field
l
-34-
SECOND AMENDED COMPLAINT FOR DAMAGES
I marking devices to avoid conflict with the Kinder Pipeline and that additional locating and monitoring
2 was unnecessary. The Kinder Pipeline was not located where KMEP, SFPP,KMGP, KMI, and DOES
3 51-150,and each of them,represented it to be.Further,KMEP,SFPP,KMGP,KMI,and DOES 51-150,
4 and each of them, failed to locate and field mark the location which may be affected by the excavation
5 to the extent and degree of accuracy that the information was available either in their own records or
6 through standard locating techniques other than excavation. In fact, Mark Presley admitted that he
7 often did not even use drawings or maps,as he found them to be inaccurate.Mr.Presley stated that the
8 .Kinder Pipeline only bent around tree roots, and since he saw no tree, the Kinder Pipeline did not
9 deviate from a straight path;and
10 • falsely representing to MOUNTAIN CASCADE,EBMUD and others that they employed
11 properly trained and supervised personnel to locate and field mark the Kinder Pipeline. Among others,
12 both Mike Biggs, Mark Presley and Peter Brooks lacked the skills and experience necessary to
13 accurately read and interpret drawings and maps,and to actually know that the reading of drawings and
(� 14 maps was crucial to locating the Kinder Pipeline.
15 121.The conduct alleged above by KMEP,SFPP,KMGP,KMI,and DOES 51-150, inclusive and
16 each of them was, among other things, despicable conduct being carried on with a willful and
17 conscious disregard of the rights and/or safety of others, including but not limited to Plaintiff ROGER
18 PAASCH. Among other things, KMEP, SFPP, KMGP, KMI, and DOES 101-150, inclusive, and each
19 of them, was aware of the probable dangerous consequences of its conduct and willfully and
20 deliberately failed to avoid those consequences, which resulted in the personal injuries and property
21 damage,and subsequent death of MIGUEL REYES,deceased.
22 122. When KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, made the
23 representations as set forth above,they knew them to be false,had no reasonable ground for believing
24 them to be true,and knew that they did not have the knowledge which they professed.
25 123.Although the representations were not.made directly to MIGUEL REYES,deceased,KMEP,
26 SFPP, KMGP, KMI, and DOES 51-150, and each of them, made the representations to MOUNTAIN
��- 27 CASCADE and others with the intent that such representations be relied upon in excavating the
AVIw
28 EBMUD Pipeline,plaintiff ROGER PAASCH is entitled to protection as he suffered property damage
-35-
SECOND AMENDED COMPLAINT FOR DAMAGES
1 and physical injuries resulting from MOUNTAIN CASCADE'S and others justifiable reliance on the
2 representations that the Kinder Pipeline was properly marked.
3 124. Matamoras Pipeline, Inc., and its employees, including Plaintiff ROGER PAASCH,
4 justifiably relied on said representations that the workplace was safe from extreme risk of harm. As a
5 result, Plaintiff ROGER PAASCH was injured in his person and also sustained personal property
6 damage.
7 125.KMEP,SFPP,KMGP,and KMI,and DOES 51-150,inclusive,and each of them,knew,or in
8 the exercise of reasonable care should have known, that the conditions constituted an extremely
9 dangerous condition and unreasonable risk of serious injury or death to those who would foreseeably
10 be in the vicinity of or working on the Project,Kinder Pipeline or EBMUD Pipeline,and that the danger
11 would-not be apparent to those persons, such as Plaintiff ROGER PAASCH. KMEP, SFPP, KMGP,
12 KMI, and DOES 51-150, inclusive, and each of them, willfully and deliberately failed to avoid these
13 consequences or protect others, including MIGUEL REYES, deceased, from these consequences.
!� 14 Under the circumstances of this case involving excavation next to the high-pressure Kinder Pipeline,
15 the conduct of KMEP, SFPP, KMGP, KMI, and DOES 51- 150, inclusive, and each of them,
16 constitutes malice,oppression and/or fraud.
17 126. As a direct and legal result of the alleged conduct of KMEP, SFPP, KMGP, and KMI, and
18 DOES 51-150, inclusive, and each of them, Plaintiff ROGER PAASCH, was hurt and injured in his
19 health, strength, and activity. He suffered unjustifiable and substantial physical pain and mental
20 suffering.
21 127. The above-alleged acts of KMEP, SFPP, KMGP, KMI, and DOES 51-150, inclusive, and
22 each of them,were willful,wanton,malicious,oppressive,despicable,and/or fraudulent,and justify an
23 award of punitive damages.At all times mentioned herein,KMEP, SFPP,KMGP, KMI, its employees,
24 agents,representatives, independent contractors, and DOES 51-150, inclusive, and each of them were
25 guilty of malice, oppression, fraud, and/or a willful and conscious disregard for the rights of those
26 working on the EBMUD Pipeline, including MIGUEL REYES, deceased. Given the dangerous and
L-F6- 27 ultra hazardous nature of the work performed on the Project, the Kinder Pipeline, and the close
naur
28 proximity of the Kinder Pipeline to the EBMUD Pipeline, the false representations and conduct .of
-36-
SECOND AMENDED COMPLAINT FOR DAMAGES
I KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, was despicable, malicious,
2 fraudulent, oppressive, and made with a conscious disregard for the safety of, among others, Plaintiff
3 ROGER PAASCH.
4 128. Plaintiff is entitled to punitive damages against KMEP, SFPP, KMGP, KMI, and DOES 51-
5 150, inclusive, and each of them, as corporate defendants because an officer, director or managing
6 agent thereof had advance knowledge of the unfitness of its employees, agents, representatives, or
7 independent contractors(including but not limited to Mike Biggs,Mark Presley and Peter Brooks)and
8 employed or retained them with a conscious disregard of the rights or safety of others, authorized or
9 ratified the wrongful conduct of its agents, employees, representatives, independent contractors and
10 DOES 51-150,and each of them,who were acting as an officer, director or managing agent of KMEP,
11 SFPP, KMGP, KMI, and DOES 51-150, and each of them, and which officer, director or managing
12 agent was personally guilty of oppression,fraud and/or malice.Among other things, an officer, director
13 or managing agent of KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, ratified the
14 conduct of its employees, agents, representatives or independent contractors by continuing to employ
15 them, failing to criticize, censure, reprimand, terminate, suspend or take other remedial action against
16 them, issuing press releases, interfering with attempts of the regulatory agencies including Cal-OSHA
17 to interview them,and providing them with legal counsel so as to defend their conduct. Furthermore, a
18 vice-president of operations and engineering of KMEP, SFPP, KMGP, KMI, and DOES 51-150,
19 inclusive, falsely stated in questions following the incident that "the workers had been provided maps
20 and should have been aware of the fuel pipeline's location."The press release issues by KMEP, SFPP,
21 KMGP, KMI, and DOES 51-150, inclusive, dated November 10, 2004 stated that defendants "do not
22 expect this incident will have significant adverse financial impact,"nor did it appear the incident"will
23 require major environmental clean-up."
24 129. Despite full knowledge of the consistent pattern and practice of conduct by its employees,
25 agents, representatives or independent contractors which led to regularly occurring pipeline accidents,
26 and despite full awareness of all dangers to human life and property associated with pipeline incidents,
_ .- 27 KMEP, SFPP, KMGP, KMI, and DOES 51-150, inclusive, intentionally, deliberately and/or
AWL_
28 consciously failed to improve, update, revise, or change its ineffective safety policies and practices,
4. -37-
SECOND AMENDED COMPLAINT FOR DAMAGES
r�
I training of employees,and communication within the ranks of the corporation,which led directly to its
2 prior incidents and the incident Plaintiff ROGER PAASCH.
3 130. The above-described conduct of KMEP, SFPP, KMGP, KMI, and DOES 51-150, inclusive,
4 which includes intentional and conscious disregard of safety standards and acting in a manner
5 calculated to stonewall and/or deceive regulatory authorities for their own financial benefit was
6 despicable and carried on with a willful and conscious disregard for the rights and safety of others,
7 including Plaintiff ROGER PAASCH.
8 WHEREFORE, Plaintiff ROGER PAASCH, prays judgment against KMEP, SFPP, KMGP,
9 KMI,and DOES 51-150,inclusive,and each of them,as hereinafter set forth.
NINTH CAUSE OF ACTION
10 WILLFUL MISCONDUCT
AGAINST MOUNTAIN CASCADE,AND DOES 51-100,and 151-250,INCLUSIVE
11 (By Plaintiff ROGER PAASCH)
12
131.Plaintiff,and each of them,incorporate each and every allegation contained in paragraphs 1
13
through 130 above,as though fully set forth herein.
i 14
132.MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,knew that its workers
15
were excavating a trench for the EBMUD Pipeline,with the route of the EBMUD Pipeline being
16
generally parallel to the high-pressure Kinder Pipeline.MOUNTAIN CASCADE,and DOES 51-100,
17
and 151-250,inclusive,further knew that workers were working inside the EBMUD Pipeline while
18
using welding tools,which work was in close proximity to the excavation work.
19
133.MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,knew that it had to
20
guard against extreme risk of injury to persons and property,while digging near or in the vicinity of the
21
Kinder Pipeline.MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,knew that its
22
construction activities were to be coordinated with others working on the Project to ensure the safety of
23
all of those working on the Project.MOUNTAIN CASCADE,and DOES 51-100,and 151-250,
24
inclusive,knew of the requirements for notification of excavation,locating of,and excavation when
25
working near or in the vicinity of existing utilities,including but not limited to those requirements under
26
Government Code sections 4216.2 and 4216.4,and knew of the importance of reviewing and analyzing
27
'W UW drawings and maps to determine the location of the Kinder Pipeline.
28
� -38-
SECOND AMENDED COMPLAINT FOR DAMAGES
1 134.MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,knew that EBMUD
2 terminated its prior contract with the initial general contractor(Modern Continental Construction Co.)
3 on the Project and that Modern Continental Construction Co.had previous expressed concerns to
4 EBMUD,KMEP, SFPP,KMGP,KMI,COMFORCE,and DOES 51-150,regarding the location of the
5 Kinder Pipeline with respect to the EBMUD Pipeline.
6 135.At all times relevant hereto,MOUNTAIN CASCADE,and DOES 51-100,and 151-250,
7 inclusive,represented and advertised that the foundation of its success is its"dedication to knowledge,
8 integrity,quality and superior service"and that it"routinely take(s)on tough projects that our
9 competitors shy away fr6m and turn them into profit."
10 136.MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,knew that it had
11 experienced several work related incidents in the past relating to a failure to abide by safety standards,
12 including at least two deaths in the last five years,with the most recent occurring in March of 2004
13 when a worker was crushed while unloading a pipe.Despite this knowledge,MOUNTAIN CASCADE,
14 and DOES 51-100>and 151-250 inclusive knowingly employed the same supervisory employee whose
15 crew was responsible for that incident for the EBMUD Project.MOUNTAIN CASCADE,and DOES
16 51-100,and 151-250,were also the subject of several civil lawsuits involving wrongful death,as well as
17 criminal prosecutions.
18 137.MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,knew of the peril of
19 an explosion if the flammable liquids or gasses inside the Kinder Pipeline escaped in the vicinity of the
20 construction of the EBMUD Pipeline where workers,including Plaintiff ROGER PAASCH,worked
21 with welding tools.MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,knew that the
22 injuries of Plaintiff ROGER PAASCH,was a probable,as opposed to possible,result of that danger,as
23 Plaintiff ROGER PAASCH,was working inside the EBMUD Pipeline using welding tools,and had no
24 means of making an easy or fast escape in the event of an explosion and thus would be trapped inside
25 the EBMUD Pipeline for a period of time.
26 138.MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,intentionally,
UV R_ 27 knowingly,deliberately,and/or consciously failed to avoid the above-referenced peril by,among other
28 things:
-39-
SECOND AMENDED COMPLAINT FOR DAMAGES
1 • failing to hire, train, retain and supervise its employees, representatives, agents and
2 independent contractors with respect to the performance of the work on the Project.
3 • MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,failed to advise or train
4 its employees who operated power operated or power driven backhoes and other equipment on the
5 Project that the Kinder Pipeline was a high-pressure pipeline carrying flammable liquids.For instance,a
6 backhoe operator (David Bauer) who had dug across or within three feet of the Kinder Pipeline
7 approximately 10 days before the incident represented that he thought the placards warning of a Kinder
8 Pipeline in the right of way marked an abandoned petroleum line that was being removed.
9 MOUNTAIN CASCADE, and DOES 51-100, and 151-250, inclusive, failed to train, instruct and
10 communicate with its employees of the meaning of the placards or field markings;
11 • failing to determine the location of the Kinder Pipeline through a review of maps and
12 drawings.For instance,Superintendent Sean Ross considered plans to be"guidelines"and "95%of the
13 time not accurate." Additionally, neither Sean Ross and Gene Im, foreman, reviewed any plans or
�! 14 drawings prior to allowing excavation, rather they told the operators to digi in a straight line, even
15 though they knew that there was a bend in the Kinder Pipeline. Furthermore, the backhoe operator
16 (Greg Berry) who struck the Kinder Pipeline was never shown and never reviewed any maps or
17 drawings prior to the incident with respect to the location of the Kinder Pipeline;
18 • failing to determine the location of the Kinder Pipeline by excavating with hand tools. For
19 instance, a backhoe operator(David Bauer)had dug across or within three feet of the Kinder Pipeline
20 approximately 10 days before the incident.Furthermore,the backhoe operator(Greg Berry)who struck
21 the Kinder Pipeline never used any hand tools to determine the location of the Kinder Pipeline prior to
22 using his backhoe and striking the Kinder Pipeline;
23 • representing to, among others, EBMUD and KMEP, SFPP, KMGP, KMl, and DOES 51-150,
24 inclusive,on or about September 28,2004 and November 2,2004 that it was aware of the exact location
25 of the Kinder .Pipeline. The representations were made by, among others, Sean Ross, which
26 representations were in fact false as MOUNTAIN CASCADE,and DOES 51-100,and 151-250,had not
aL-F— 27 determined the exact location of the Kinder Pipeline through either the review and analysis of drawings
28 and maps,or by excavating with hand tools;
-40-
SECOND AMENDED COMPLAINT FOR DAMAGES
I • attempting,through pressure by and requirements of EBMUD and DOES:l-50, and each of
2 them, to complete the work on the Project in a time frame that was not feasible without endangering
3 the safety of the public and those working on the Project, including Plaintiff ROGER PAASCH. For
4 instance, superintendent Sean Ross considered it"not a good idea to ask for a re-mark" of the Kinder
5 Pipeline because it would have to stop work for 48 hours at the expense of profit;
6 • failing to require KMEP, SFPP, KMGP and KMI,and DOES 101-150,and each of them, to
7 relocate the Kinder Pipeline to a location away from the immediate vicinity of the Project. Although
8 MOUNTAIN CASCADE, and DOES 51-100, and 151-250, inclusive, knew that Modern Continental
9 Construction Co. had concerns about the location of the Kinder Pipeline to the EBMUD Pipeline, and
10 knew that there was a bend in the Kinder Pipeline,MOUNTAIN CASCADE, and DOES 51-100, and
11 151-250,inclusive,did not stop work on the Project and require the relocation of the Kinder Pipeline or
12 relocation of the Project away from the Kinder Pipeline;
13 • failing to inquire as to concerns of other entities working on the Project or who worked on
10 14 the project (including among others Modern Continental Construction Co., EBMUD, KMEP, SFPP,
15 KMGP, KMI and DOES 1-50 and 101-150,and each of them) regarding the location of the Kinder
16 Pipeline to the vicinity of the Project and EBMUD Pipeline. MOUNTAIN CASCADE, and DOES 51-
17 100, and 151-250, inclusive, took the contract with EBMUD for financial profit, consistent with its
18 motto that it"routinely take(s) on tough projects that our competitors shy away from and turn them
19 into profit;"
20 • failing to conduct daily inspections, or requiring others to conduct, by a competent individual
21 prior to the start of work and as needed throughout the shift for evidence of a situation that could result
22 in a dangerous and ultrahazardous condition, such as the condition resulting in the injuries of Plaintiff
23 ROGER PAASCH;
24 • failing to remove, or requiring others to remove, individuals working on the Project,
25 including Plaintiff ROGER PAASCH, from the dangerous and ultrahazardous area until necessary
26 precautions had been taken to ensure the safety of those individuals,including ROGER PAASCH;and
a L—Flim 27 • failing to timely contact or notify Underground Service Alert prior to excavating,or allowing
MdLW
28 excavation, near the Kinder Pipeline and EBMUD Pipeline. For instance, the operator of the backhoe
-41-
SECOND AMENDED COMPLAINT FOR DAMAGES
I (Greg Berry) did not observe any field markings on the ground near or in the vicinity of the Kinder
2 Pipeline, yet MOUNTAIN CASCADE, and DOES 51-100, and 151-250, inclusive, failed to contact
3 Underground Service Alert or any other entity, about the lack of field markings, because such contact
4 would have resulted in delay of the project and loss of profits.
5 139.The conduct alleged above by MOUNTAIN CASCADE, and DOES 51-100, and 151-250,
6 inclusive, was, among other things, despicable conduct being carried on with a willful and conscious
7 disregard of the rights and/or safety of others, including but not limited Plaintiff ROGER PAASCH.
8 Among other things,MOUNTAIN CASCADE, and DOES 51-100, and 151-250, inclusive,was aware
9 of the probable dangerous consequences of its conduct and willfully and deliberately failed to avoid
10 those consequences, which resulted in the personal injuries and property damage, of Plaintiff ROGER
11 PAASCH.
12 140. When MOUNTAIN .CASCADE, and DOES 51-100, and 151-250, inclusive, made the
13 representations as set forth above,they knew them to be false,had no reasonable ground for believing
!. 14 them to be true,and knew that they did not have the knowledge which they professed.
15 141. Although the representations were not made directly to Plaintiff ROGER PAASCH,
16 MOUNTAIN CASCADE, and DOES 51-100, and 151-250, inclusive, made the representations to,
17 among others, EBMUD with the intent that such representations be relied upon in excavating the
18 EBMUD Pipeline.Plaintiff ROGER PAASCH is entitled to protection as he suffered property damage
19 and physical injuries resulting from justifiable reliance on the representations that the Kinder Pipeline
20 was properly marked.
21 142. Matamoros Pipeline, Inc., and its employees, including Plaintiff ROGER PAASCH,
22 justifiably relied on said representations that the workplace was safe from extreme risk of harm. As a
23 result, Plaintiff ROGER PAASCH was injured in his person and also sustained personal property
24 damage.
25 143.MOUNTAIN CASCADE, and DOES 51-100,and 151-250, inclusive, acted so as to cause
26 the personal injuries and property damages of Plaintiff ROGER PAASCH and to legally cause the
alar Flm 27 injuries and damages described below.
28 144. MOUNTAIN CASCADE, and DOES 51-100, and 151-250, inclusive, knew, or in the
-42-
SECOND AMENDED COMPLAINT FOR DAMAGES
I exercise of reasonable care should have known,that the conditions constituted an extremely dangerous
2 condition and unreasonable risk of serious injury or death to those who would foreseeably be in the
3 vicinity of or working on the Project, Kinder Pipeline or EBMUD Pipeline, and that the danger would
4 not be apparent to those persons, such as Plaintiff ROGER PAASCH. MOUNTAIN CASCADE, and
5 DOES 51-100,and 151-250,inclusive,willfully and deliberately failed to avoid these consequences or
6 protect others, including Plaintiff ROGER PAASCH, from these consequences. Under the
7 circumstances of this case involving excavation next to the high-pressure Kinder Pipeline, the conduct
8 of MOUNTAIN CASCADE,and DOES 51-100, and 151-250, inclusive,constitutes malice,oppression
9 and/or fraud.
10 145.As a direct and legal result of the alleged conduct of MOUNTAIN CASCADE, and DOES
11 51-100,and 151-250,inclusive,Plaintiff ROGER PAASCH,was hurt and injured in his health,strength,
12 and activity.He suffered unjustifiable and substantial physical pain and mental suffering.
13 146. The above-alleged acts of MOUNTAIN CASCADE, and DOES 51-100, and 151-250,
14 inclusive, were willful, wanton, malicious, oppressive, despicable, and/or fraudulent, and justify an
15 award of punitive damages. At all times mentioned herein, MOUNTAIN CASCADE, and DOES51-
16 100, and 151-250, inclusive, were guilty of malice, oppression, fraud, and/or a willful and conscious
17 disregard for the rights of those working on the EBMUD Pipeline, including Plaintiff ROGER
18 PAASCH. Given the dangerous and ultrahazardous nature of the work performed on the Project, the
19 Kinder Pipeline, and the close proximity of the Kinder Pipeline to the EBMUD Pipeline, the false
20 representations and conduct of MOUNTAIN CASCADE, and DOES 51-100, and 151-250, inclusive,
21 was despicable, malicious, fraudulent, oppressive, and made with a conscious disregard for the safety
22 of,among others,Plaintiff ROGER PAASCH.
23 147. Plaintiffs are entitled to punitive damages against MOUNTAIN CASCADE,and DOES 51-
24 100, and 151-250, inclusive, as corporate defendants because an officer, director or managing agent
25 thereof had advance knowledge of the unfitness of its employees (including but not limited to Sean
26 Ross,Gene Im,Greg Berry,.David Bauer)and employed or retained them with a conscious disregard of
aL—� 27 the rights or safety of others, authorized or ratified the wrongful conduct of its agents, employees,
9 el Lar
28 representatives,independent contractors and DOES 51-100,and 151-250,and each of them,who were
-43-
SECOND AMENDED COMPLAINT FOR DAMAGES
I acting as an officer, director or managing agent of MOUNTAIN CASCADE, and DOES 51-100, and
2 151-250, inclusive, and which officer, director or managing agent was personally guilty of oppression,
3 fraud and/or malice. Among other things, an officer, director or managing agent of MOUNTAIN
4 CASCADE, and DOES 51-100, and 151-250, inclusive, ratified the conduct of its employees by
5 continuing to employ them, failing to criticize, censure, reprimand, terminate, suspend or take other
6 remedial action against them,issuing press releases,interfering with attempts of the regulatory agencies
7 including Cal-OSHA to interview them, and providing them with legal counsel so as to defend their
8 conduct.
9 148. Despite full knowledge of the consistent pattern and practice of conduct by its employees
10 which led to numerous incidents involving workers safety and despite full awareness of all dangers to
11 human life and property associated with pipeline incidents, MOUNTAIN CASCADE, and DOES 51-
12 100, and 151-250, inclusive, intentionally, deliberately and/or consciously failed to improve, update,
13 revise, or change its ineffective safety policies and practices, training of employees, or employment of
�. 14 effective communication procedures,which led directly to its prior incidents and the incident involving
15 Plaintiff ROGER PAASCH.
16 149. The above-described conduct of MOUNTAIN CASCADE, and DOES 51-100, and 151-
17 250, inclusive, which includes intentional and conscious disregard of safety standards and acting in a
18 manner calculated to stonewall and/or deceive regulatory authorities, for their own financial benefit,
19 was despicable and carried on with a willful and conscious disregard for the rights and safety of others,
20 including Plaintiff ROGER PAASCH.
21 WHEREFORE,Plaintiff ROGER PAASCH prays judgment against MOUNTAIN CASCADE,
22 and DOES 51-100,and 151-250,inclusive,as hereinafter set forth.
.23 JURY DEMAND
24 Plaintiff ROGER PAASCH demands a jury trial for all claims so triable.
25 PRAYER FOR RELIEF
26 WHEREFORE,Plaintiff ROGER PAASCH prays for judgment against all Defendants, and
27 each of them,as follows:
28 AS TO THE FIRST AND FIFTH CAUSES OF ACTION:
-44-
SECOND AMENDED COMPLAINT FOR DAMAGES
l�
1 1. For general damages in an amount to be proven at trial;
2 2. For special damages in an amount to be proven at trial;
3 3. For costs of suit;and
4 4. For such other and further relief as the Court deems proper.
5
AS TO THE SECOND,THIRD,FOURTH,SIXTH,SEVENTH,EIGHTH,AND NINTH
6
CAUSES OF ACTION:
7
1. For general damages in an amount to be proven at trial;
8
2. For special damages in an amount to be proven at trial;
9
3. For punitive and exemplary damages in an amount to be proven at trial and as requested
10
in this Second Amended Complaint;
11
4. For costs of suit;and
12
5. For such other and further relief as the Court deems proper.
13 Dated: December ,2005 THE GOMEZ LAW FIRM
(• 14
15 By:
JOHN H.GOMEZ
16
Attorneys for Plaintiff ROGER PAASCH
17
18
19
20
21
22
23
24
25
26
=v-Rm 27
AWL-
29
-45-
SECOND AMENDED COMPLAINT FOR DAMAGES
STEINBRECHER AND ASSOCIATES
1 16830 Ventura Boulevard,Suite B
Encino,California 91436
2 Tel.(818)528-7600/Fax(818)528-7620
3 edward steinbrecher,esq.,sbn 58390
4 mark lieber,esq.,sbn 144399
Attorneys for Plaintiffs,Maria Ramos,
5 Erica Ramos,Ramona Ramos,Gricclda Ramos,
6 Jasmin Ramos,and Gerardo Ramos
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA,CONTRA COSTA
8
STEINBI
AND 9 GAS PIPELINE EXPLOSION CASES
ASSOCI Judicial Council Coordination Proceedings No.
10 :4433
Coordinated Actions:
11 (Unlimited Civil)
Knox,et al.v.MOUNTAIN CASCADE,et al.
12 (Contra Costa Sup.Ct. Case No.C 05-00281); FIRST AMENDED COMPLAINT
FARLEY vs.MOUNTAIN CASCADE,et al(Contra For WRONGFUL DEATH AND SURVIVAL
13 Costa Sup.Ct.Case No.C 05-01573);REYES,et al.
�• v.EAST BAY MUNICIPAL UTILITY DISTRICT, damages
14 et al.(Alameda Sup.Ct.Case No.RG-05-207720);
ARIAS,et al.v.KINDER MORGAN,et al. Maria Ramos, et al. vs. East Bay Municipal
15 (Alameda Sup.Ct.Case No.RG-05-195567); Utility District, et al. (Contra Costa Sup. Ct. Case
ANGELES,et al.v.KINDER MORGAN,et al. No. C 05-01840)
16 (Alameda Sup.Ct.Case No.RG-05-195680)
17
18
Plaintiffs,Maria Ramos, Erica Ramos, Ramona Ramos, Gricelda Ramos, Jasmin Ramos and
19
20 Gerardo Ramos,allege against defendants East Bay Municipal Utility District; Kinder Morgan,.Inc.;
Kinder Morgan Energy Partners,LP; Kinder Morgan G.P., Inc.; SFPP,LP; Camp Dresser&McKee
21
22 Inc.; City of Walnut Creek; Contra Costa County; Comforce Technical Services, Inc; Carollo
23 Engineers,P.C.;and Does I through 300,inclusive,and each of them,as follows:
GENERAL ALLEGATIONS
24
25 1. Plaintiff Maria Ramos is, at all.times mentioned herein was, a resident of the County
26 of Contra Costa, State of California,and a successor in interest of JAVIER RAMOS, deceased, and
27 succeeds to this cause of action because there is no personal representative of the estate of JAVIER
RAMOS, deceased. Maria Ramos brings this complaint in her individual capacity and her capacity
t 28 1
FIRST AMENDED COMPLAINT FOR DAMAGES fp
q�V�I060 l l'S�
I as successor in interest as the sole surviving spouse of JAVIER RAMOS,deceased. Maria Ramos is
2 also the mother and guardian ad litem for the remaining plaintiffs. On the same date as this
3 Complaint was filed, Maria Ramos filed the required declaration under Code of Civil Procedure
4 section 377.32.
5 2. Plaintiff Erica Ramos, a minor, by and through her guardian ad litem, Maria Ramos,
6 is, and at all times mentioned herein was, a resident of the County of Contra Costa, State of
7 California, and brings this complaint in her individual capacity as the minor child of JAVIER
8 RAMOS,deceased. For purposes of this action,Maria Ramos has concurrently submitted with this
STEINBI
AND 9 complaint her application to be appointed by the above-entitled court as the guardian ad litem of
ASSOCI
10 plaintiff Erica Ramos,a minor.
11 3. Plaintiff Ramona Ramos, a minor, by and through her guardian ad litem, Maria
12 Ramos,is, and at all times mentioned herein was,a resident of the County of Contra Costa, State of
13 California, and brings this complaint in her individual capacity as the minor child of JAVIER
14 RAMOS, deceased. For purposes of this action,Maria Ramos has concurrently submitted with this
15 complaint her application to be appointed by the above-entitled court as the guardian ad litem of
16 plaintiff Ramona Ramos,a minor.
17 4. Plaintiff Gricelda Ramos, a minor, by and through her guardian ad litem, Maria
18 Ramos, is,and at all times mentioned herein was, a resident of the County of Contra Costa, State of
19 California, and brings this complaint in her individual capacity as the minor child of JAVIER
20 RAMOS, deceased. For purposes of this action, Maria Ramos has concurrently submitted with this
21 complaint her application to be appointed by the above-entitled court as the guardian ad litem of
22 plaintiff Gricelda Ramos,a minor.
23 5. Plaintiff Jasmin Ramos,a minor,by and through her guardian ad litem,Maria Ramos,
24 is, and at all times mentioned herein was, a resident of the County of Contra Costa, State of
25 California, and brings this complaint in her individual capacity as the minor child of JAVIER
26 RAMOS, deceased. For purposes of this action,Maria Ramos has concurrently submitted with this
27 complaint her application to be appointed by the above-entitled court as the guardian ad litem of
t
5 28 2
FIRST AMENDED COMPLAINT FOR DAMAGES
I plaintiff Jasmin Ramos,a minor.
2 6. Plaintiff Gerardo Ramos, a minor, by and through his guardian ad litem, Maria
3 Ramos, is,and at all times mentioned herein was, a resident of the County of Contra Costa, State of
4 California, and brings this complaint in her individual capacity as the minor child of JAVIER
5 RAMOS, deceased. For purposes of this action,Maria Ramos has concurrently submitted with this
6 complaint her application to be appointed by the above-entitled court as the guardian ad litem of
7 plaintiff Gerardo Ramos,a minor.
8 7. Defendant East Bay Municipal Utility District(EBMUD) is,and at all times mentioned
STEINBI
AND 9 herein was,a publicly owned utility formed under the Municipal District Act passed by the California
ASSOCI
10 Legislature in 1921. EBMUD maintains its administrative and headquarters' offices and is situated in
11 the City of Oakland, County of Alameda, State of California. EBMUD planned, designed, owned,
12 supervised, controlled, and constructed a public works construction project known as the Walnut
13 Creek-San Ramon Valley Improvement Project (Project) which involved the installation of a water
14 pipeline(EBMUD Pipeline). The route of the EBMUD Pipeline was to be generally parallel to, east
15 of,and above a high-pressure fuel pipeline system located in,among other plades,the City of Walnut
16 Creek,County of Contra Costa,State of California(Kinder Pipeline). The section of the Project and
17 Kinder Pipeline at issue in this complaint was located within downtown Walnut Creek, California in
18 the direct vicinity of business entities,a school,and residences.
19 8. Defendant Kinder Morgan Energy Partners, L.P. (KMEP) is, and at all times
20 mentioned herein was, a limited partnership duly organized and existing under the laws of the State
21 of Delaware, and qualified and doing business in the State of California. KMEP is, and at all times
22 relevant herein was, the designer, manufacturer, owner, operator, manager, locator, field marker,
23 monitor, and inspector of a high-pressure fuel pipeline system located in, among other places, the
24 City of Walnut Creek,County of Contra Costa, State of California (Kinder Pipeline). KMEP is the
25 largest independent owner/operator of products pipeline in the United States,transporting more than
26 two million barrels a day of gasoline,jet fuel and diesel fuel and up to 7.8 billion cubic feet a day of
27 natural gas liquids through more than 10,000 miles of pipelines,of which some 3,850 are in its Pacific
28 3
FIRST AMENDED COMPLAINT FOR DAMAGES
I pipeline system. It is the largest publicly traded pipeline limited partnership in the United States in
2 terms of market capitalization.
3 9. Defendant SFPP, LP (SFPP) is, and at all times mentioned herein was, a limited
4 partnership duly organized and existing under the laws of the State of Delaware, and qualified and
5 doing business in the State of California. SFPP is, and at all times relevant herein was,the designer,
6 manufacturer, owner, operator, manager, locator, field marker, monitor, and inspector of the Kinder
7 Pipeline. SFPP is an operating partnership and subsidiary limited partnership of KMEP.
8 10. Defendant Kinder Morgan G.P., Inc. (KMGP) is, and at all times mentioned herein
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AND 9 was,a corporation duly organized and existing under the laws of the State of Delaware,and qualified
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10 and doing business in the State of California as, among other things, the general partner of KMEP.
11 KMGP, is, among other things, the .wholly owned subsidiary of defendant Kinder Morgan, Inc.
12 KMGP is,and at all times relevant herein was,the designer,manufacturer,owner,operator,manager,
13 locator,field marker,monitor,and inspector of the Kinder Pipeline.
14 11. Defendant Kinder Morgan, Inc. (KMI) is, and at all times mentioned herein was, a
15 corporation duly organized and existing under the.laws of the State of Kansas, and qualified and
16 doing business in the State of California. KMGP is the wholly-owned subsidiary of KMI. KMI is,
17 and at all times relevant herein was, the designer, manufacturer, owner, operator, manager, locator,
18 field marker, monitor, and inspector of the Kinder Pipeline. KMI is one of the largest mid-stream
19 energy companies in the United States, owning and/or operating more than 35,000 miles of natural
20 gas and products pipeline.
21 12. Camp Dresser & McKee, Inc. (CDM) is, and at all times mentioned herein was, a
22 corporation duly organized and existing under the laws of the State of Massachusetts, and qualified
23 and doing business in the State of California. CDM entered into a contract with, among others,
24 EBMUD to, among other things, provide consulting, design and related engineering services for the
25 Project. CDM.then entered into a subcontract with Carrollo Engineers, P.C., to, among other things,
26 provide consulting, design and related engineering services for the portion of the Project at issue in
27 this lawsuit. Plaintiffs have filed the required certificate of merit pursuant to Code of Civil Procedure
28 4
FIRST AMENDED COMPLAINT FOR DAMAGES
I section 411.35
2 13. Defendant City of Walnut Creek (Walnut Creek) was and is a governmental entity,
3 duly existing and organized by virtue of the laws of the State of California. Walnut Creek oversaw,
4 planned,designed,owned,supervised,controlled,and constructed the Project involving the EBMUD
5 Pipeline in the City of Walnut Creek.
6 14. Defendant County of Contra Costa(Contra Costa)was and is a governmental entity,
7 duly existing and organized by virtue of the laws of the State of California. Contra Costa oversaw,
STEINBI 8 planned,designed,owned,supervised,controlled,and constructed the Project involving the EBMUD
AND 9 Pipeline in the County of Contra Costa and the City of Walnut Creek.
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10 15. Defendant Comforce Technical Services, Inc. (Comforce) was and is a corporation
11 organized pursuant to the laws of the State of Delaware,doing business with the State of California,
12 and provided temporary employees and staffing to take direction from defendants KMI,KMEP, and
13 SFPP.
14 16. Defendant Carollo Engineers, P.C. (Carollo) was and is a business entity organized
15 pursuant to the laws of the State of Arizona, doing business within the State of California, and
16 providing consulting, design and related engineering services for water and wastewater treatment
17 facilities,including the Project and Kinder Pipeline at issue.
18 17. At all times herein mentioned Does 1 through 300, inclusive, and each of them, were
19 as follows:
20 (a) Individuals and/or business organizations form unknown that were engaged in the
21 business of planning, designing, owning, supervising, controlling and constructing the
22 Project.
23 (b) Individuals and/or business organizations form unknown were engaged in the
24 construction, supervision, - operation, and control of the Project as contractors or
25 subcontractors hired by EBMUD, and Does 1 through 300, and each of them, and/or
26 Mountain Cascade.
27 (c) Individuals and/or business organizations form unknown that designed,
j� 28 5
FIRST AMENDED COMPLAINT FOR DAMAGES
•
I manufactured, sold, owned, controlled, operated, maintained, inspected, distributed,
2 transported, located, field marked, monitored, and managed the Kinder Pipeline and/or
3 contents therein.
4 (d) Individuals and/or business organizations form unknown that were the owner(s)
5 and/or bailee(s)of the backhoe vehicle which struck the Kinder Pipeline.
6 (e) Individuals and/or business organizations form unknown that drove and/or operated
7 the backhoe vehicle which struck the Kinder Pipeline.
8 (f) Individuals and/or business organizations form unknown that owned or controlled the
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AND 9 real property where the Project,EBMUD Pipeline,and Kinder Pipeline was located.
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10 18. Plaintiffs are ignorant of the true names and/or capacities of defendants sued herein as
11 Does 1 through 300,inclusive,and therefore sue these defendants by such fictitious names. Plaintiffs
12 will amend this complaint to allege their true names and capacities when ascertained. Plaintiffs are
13 informed and believe, and on that basis allege, that each of said fictitiously named defendants is
14 responsible in some manner for the occurrences herein alleged, and that the injuries herein alleged
15 were proximately caused by their conduct:
16 19. Plaintiffs are informed and believe and on that basis allege that at all times mentioned
17 herein,each of the defendants was the agent and employee of each of the remaining defendants, and
18 in doing the things alleged in this Complaint,was acting within the course and scope of this agency
19 and employment, with the knowledge, approval, consent and ratification of each of the remaining
20 defendants.
21 20. Plaintiffs are informed and believe, and thereon allege,that at all times relevant, there
22 exists, and has existed, a unity of interest and ownership between KMEP, SFPP,KMGP, KMI, and
23 Does 1 through 300, and each of them, such that any individuality and separateness between the
24 entities has ceased to exist. Upon information and belief, KMEP is the alter ego of KMGP, SFPP,
25 KMI,and Does I through 300,and each of them. Upon information and belief, SFPP is the alter ego
26 of KMEP,KMGP, KMI,and Does 1 through 300, and each of them. Upon information and belief,
27 KMGP is the alter ego of KMI,and Does 1 through 300. Among other things,
28 6
FIRST AMENDED COMPLAINT FOR DAMAGES
I (a) KMEP was and is completely controlled, dominated, managed and operated by
2 KMGP,KMI,and Does 1 through 300,and each of them;
3 (b) SFPP was and is completely controlled,dominated,managed and operated by KMEP,
4 KMGP,KMI and Does 1 through 300;
5 (c) KMGP was and is completely controlled,dominated,managed and operated by KMI,
6 and Does 1 through 300;
7 (d) KMEP, SFPP, KMGP, KMI and Does I through 300, have permitted assets to be
8 transferred between themselves without adequate consideration;
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AND 9 (e) KMEP,SFPP,KMGP,KMI and Does 1 through 300,have disguised corporate profits
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10 in order to evade liability and the payment of judgments;and
11 (f) KMEP, SFPP, KMGP, KMI, and Does 1 through 300, was and is inadequately
12 capitalized. Adherence to the fiction of the separate existence of KMEP, SFPP,KMGP,KMI
13 and Does 1 through 300,would permit an abuse of the corporate privilege and would sanction
14 fraud or promote injustice because the entities, and each of them, used in bad faith for the
15 purpose of evading liability and as a means of allowing the other entities,and each of them,to
16 profit from their control and manipulation free from the claims of plaintiffs.
17 21. On or.about March 14, 2005, plaintiffs, and each of them, presented their claims to
18 EBMUD pursuant to Government Code section 910. On or about March 21,2005,EBMUD rejected
19 the claims in their entirety. Attached as Exhibit A is a true and correct copy of the governmental
20 claim and rejection concerning defendant EBMUD.
21 22. On or about May 5, 2005, plaintiffs, and each of them, presented their claims to
22 Walnut Creek pursuant to Government Code section 910. On or about July 8, 2005,Walnut Creek
23 rejected the claims in their entirety. Attached as Exhibit B is a true and correct copy of the
24 governmental claim and rejection concerning defendant Walnut Creek.
25 23. On or about May 5, 2005, plaintiffs, and each of them, presented their claims to
26 Contra Costa pursuant to Government Code section 910. To date, Contra Costa has not rejected the
27 governmental claims and therefore it is rejected by operation of law. Attached as Exhibit C is a true
28 7
FIRST AMENDED COMPLAINT FOR DAMAGES
I and correct copy of the governmental claim concerning defendant Contra Costa.
2 24. The events in issue occurred on or about Tuesday November 9,2004, in and adjacent
3 to a 14-foot deep trench within the South Broadway Easement in a residential neighborhood between
4 Newell Avenue and Rudgear Road, in the City of Walnut Creek, County of Contra Costa, State of
5 California. In and adjacent to the 14-foot trench,construction workers were building a 69-inch water
6 pipeline,the subject Pipeline,to transport water from Walnut Creek to San Ramon.
7 25. Defendants EBMUD, and Does 1 through 300, and each of them, planned, designed,
STEINBI 8 owned, supervised, controlled, and constructed the Project, which involved the installation of the
AND 9 EBMUD Pipeline. EBMUD's general contract was initially awarded on or about September 24,2002,
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10 to Modern Continental Construction Co., (Modern Continental). In or about 2003 or 2004, Modern
11 Continental was excavating for the EBMUD Pipeline and Project,and determined that a segment of
12 the Kinder Pipeline was approximately 13 feet from where it had been field marked by KMEP, SFPP,
13 KMGP, KMI, and Does 1 through 300. Modern Continental expressed this concern to, among
14 others, EBMUD, KMEP, SFPP, KMGP, KMI, and Does 1 through 300, and each of them. In
15 addition,in or about August of 2003, EBMUD requested KMEP, SFPP, KMGP, KMI, and Does 1
16 through 300,to relocate a section of the Kinder Pipeline because it was,among other things,hard to
17 locate and a hindrance to the completion of the Project. In or about early 2004,Modern Continental,
18 EBMUD,and Does 1 through 300, and each of them, were extremely concerned about the location
19 of the Kinder Pipeline because it was still in the way of the excavation for the EBMUD Pipeline and
20 Project. Among others, Modern Continental, EBMUD, KMEP, SFPP, KMGP, KMI, and Does 1
21 through 300,and each of them, discussed in early 2003 the location of the Kinder Pipeline and how
22 to continue working on the Project despite the location of the Kinder Pipeline. On or about May 28,
23 2004,EBMUD issued a"Notice of Default Termination"to Modern Continental.
24 26. After EBMUD terminated its general contract with Modern Continental Construction
25 Co., EBMUD, and Does 1 through 300, and each of them, contracted in 2004 with, among others,
26 Mountain Cascade and Does 1 through 300, and each of them, to complete construction of the
27 Project. In compliance with the provisions of the Subletting and Subcontracting Fair Practices Act of
28 g
FIRST AMENDED COMPLAINT FOR DAMAGES
I the Public Contract Code of the State of California, Mountain Cascade and Does 1 through 300,
2 thereafter subcontracted with, listed and employed, among others, Matamoros Pipeline, Inc. to,
3 among other things, weld together segments of the EBMUD Pipeline. Mountain Cascade employed
4 Javier Ramos,deceased.
5 27. Prior to starting excavation, the EBMUD contract required a field meeting between
6 EBMUD and Mountain Cascade. The meeting occurred on September 28, 2004, and was attended
7 by representatives of EBMUD, Mountain Cascade, KMEP, SFPP, KMGP, KMI, Comforce, and
STEINBI 8 Does 1 through 300, inclusive. At that meeting, the line rider employed by KMEP, SFPP, KMGP,
AND 9 KMI, Comforce, and Does 1 through 300, inclusive, represented that the line markers were directly
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10 over the Kinder Pipeline and that the Kinder Pipeline ran straight between the line markers. The
11 attendees of the meeting walked the entire length of the Kinder Pipeline using a 100-foot tape to
12 show the location of the proposed EBMUD Pipeline and determine if there would be any interference
13 with the Kinder Pipeline. Fieldwork commenced in late September 2004.
14 28. In or about October of 2004, benching for the trenching excavator in the area of the
15 offset took place. Mountain Cascade and Does 1 through 300, inclusive, benched over the offset at
16 station 100+15. As of November 3 and 4,2004,there were no markings indicating the offset.
17 29. On or about November 8, 2004, a site meeting occurred which was required by
18 Mountain Cascade three days earlier, and attended by, among others, Mountain Cascade, KMEP,
19 SFPP,KMGP,KMI,Comforce,EBMUD,and Does.I through 300, inclusive. Neither KMEP, SFPP,
20 KMGP, KMI, Comforce, EBMUD, and Does 1 through 300, inclusive, represented anything about
21 the offset at this meeting.
22 30. On or about November 9, 2004, Javier Ramos, deceased, was working within the
23 course and scope of his employment at the Project, working inside the EBMUD Pipeline, which lay
24 in a trench being excavated for the EBMUD Pipeline and following South Broadway between Newell
25 Avenue and Rudgear Road in the City of Walnut Creek,County of Contra Costa,State of California.
26 31. Near to where.Javier Ramos, deceased, was working, a backhoe operator identified
27 herein as a Doe, under the direct supervision and control of EBMUD, KMEP, SFPP, KMGP, KMI
28 9
FIRST AMENDED COMPLAINT FOR DAMAGES
I and Does 1 through 300,and each of them,excavated the trench in which the EBMUD Pipeline was
2 being installed.
3 32. An underground pipeline owned and operated by, among others, KMEP, SFPP,
4 KMGP,KMI,and Does 1 through 300,and each of them(Kinder Pipeline)lay immediately adjacent
5 to the EBMUD Pipeline trench. The Kinder Pipeline was at all times an underground utility
6 transporting flammable material,consisting of gasoline,diesel fuel and/or jet fuel.
7 33. On or about November 9, 2004, Does I through 300, and each of them, so operated
8 the backhoe as to penetrate the Kinder Pipeline, causing the flammable material within to escape.
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AND 9 Plaintiffs,and each of them,are informed and believe,and thereon allege,that the flammable material
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10 and byproducts thereof from the explosion entered the EBMUD Pipeline in which Javier Ramos,
11 deceased, was working, resulting in personal injuries to Javier Ramos, and subsequently his death.
12 Before his death, Javier Ramos, deceased, suffered, among other things, damage to his personal
13 property,personal injury,and unjustifiable and substantial physical pain and mental suffering. Javier
14 Ramos, deceased, was not killed instantly but suffered a horrendous death some 28 hours after the
15 Kinder Pipeline was ruptured and exploded.
16 34. KMEP, SFPP,KMGP, KMI and Does 1 through 300,and each of them, owns a 45%
17 interest in the Cochin Pipeline System, a 1900-mile natural gas liquids pipeline operating between
18 Alberta and Ontario,Canada,traversing through seven states in the United States. On or about July
19 16,2003,the United States portions of the Cochin Pipeline System experienced a rupture and fire at a
20 rural location about 75 miles from Fargo,North Dakota.
21 35. Approximately two weeks later on or about July 30, 2003, a pipeline owned and
22 operated by KMEP,SFPP,KMGP,KMI,and Does 1 through 300,broke in a subdivision in Tucson,
23 Arizona,spraying gasoline more than fifty feet into the air,saturating five homes,and contaminating
24 soil and groundwater.
25 36. On or about April 29,2004,a pipeline owned and operated by KMEP, SFPP,KMGP,
26 KMI and Does 1 through 300, which transported gasoline, jet fuel and diesel to Chico and
27 Sacramento,California and Reno,Nevada experienced a rupture not discovered until April 30,2004.
28 10
FIRST AMENDED COMPLAINT FOR DAMAGES
I As a result, approximately 1,000 barrels or 42,000 gallons of fuel spilled into about 250 acres of
2 Suisin Marsh, a wetland in Northern California. Criticized for the delayed response, a managing
3 agent of KMEP, SFPP, KMGP, KMI, and Does 1 through 300, replied "You can't cry wolf every
4 time you see an anomaly."
5 37. On or about November 22, 2004, a pipeline owned and operated by KMEP, SFPP;
6 KMGP,KMI,and Does 1 through 300,transporting gasoline from Colton to Barstow,California into
7 Las Vegas,Nevada experienced a rupture in a rural area near Baker,California. California Highway
8 Patrol officers on nearby Interstate 15 noticed a strong odor and closed the freeway,which led to the
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AND 9 discovery of a fifty to sixty foot gasoline vapor geyser.
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10 38. On or about May 5, 2005, California OSHA issued two Serious Willful Citations to
11 KMEP for violation of California Code of Regulations (CCR) sections 1541(b)(1) and 1511(b)
12 totaling$140,000;the evidence showed that KMEP committed an intentional and knowing violation
13 and KMEP was conscious of the fact that what it was doing constituted a violation,or was aware that
14 a hazardous condition existed and made no reasonable effort to eliminate the hazard. OSHA also
15 issued one Serious Citation to Carrollo for violation of CCR section 1511(b) totaling $22,500,and
16 one Serious Citation to EBMUD for violation of CCR section 1511(b) totaling $6,750; OSHA
17 determined with respect to Carollo and EBMUD, there was a substantial probability that death or
18 serious physical harm could result from the condition which existed or from the practices,operations
19 or processes at the workplace.
20 39. As a direct.and legal result of the negligent, malicious, and tortious conduct of
21 defendants, and each of them, decedent Javier Ramos died on November 10, 2005, 28 hours
22 following the subject accident.
23 40. As a direct and legal result of the death of Javier Ramos, plaintiff Maria Ramos has
24 been deprived of the decedent's future support, love, care, comfort, affection, society, presence,
25 companionship and protection. Plaintiffs Erica Ramos, Ramona Ramos, Gricelda Ramos, Jasmin
26 Ramos and Gerardo Ramos have sustained a loss of intangible qualities of the parent-child
27 relationship, including decedent's services, society, financial support, companionship, comfort, love,
28 11
FIRST AMENDED COMPLAINT FOR DAMAGES
I affection, and solace. The foregoing has caused plaintiffs to suffer economic and non-economic
2 damages.
3 41. As a further direct and legal result of the death of Javier Ramos, plaintiff Maria
4 Ramos, as the successor in interest to the decedent, has and is responsible for the payment of
5 medical expenses, funeral and burial expenses and other related expenses incurred while the
6 decedent survived, and following his death. The foregoing has caused plaintiff Maria Ramos to
7 suffer additional economic and non-economic damages.
8
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AND 9 FIRST CAUSE OF ACTION
ASSOCI
10 NEGLIGENCE
11 AS AGAINST EBMUD AND DOES 1 THROUGH 300,INCLUSIVE
12 (By Maria Ramos,individually and as successor in interest to Javier Ramos,deceased;By Erica
13 Ramos,Ramona Ramos,Gricelda Ramos,Jasmin Ramos and Gerardo Ramos,minors)
14 42. Plaintiffs incorporate each and every allegation contained in paragraphs 1 through 41
15 above,as though fully set forth herein.
16 43. At all times relevant herein,EBMUD,and Does 1 through 300, inclusive, and each of
17 them, was engaged in the business of planning, designing, owning, supervising, controlling and
18 constructing the Project.
19 44. Because of the dangerous and ultrahazardous nature of the Project, the Kinder
20 Pipeline and contents thereof, and the location of the Kinder Pipeline in the vicinity of the EBMUD
21 Pipeline and the Project, EBMUD and Does 1 through 300, inclusive, and each of them, had a
i
22 nondelegable duty to plan,design,own,supervise,control and construct the Project in a safe manner
23 to ensure the safety of the public .and those working on the Project, including Javier Ramos,
24 deceased.
25 45. At all relevant times herein,EBMUD and Does 1 through 300, inclusive, and each of
26 them,breached said nondelegable duty by,among other things:
27 (a) Negligently,carelessly and recklessly hiring KMEP, SFPP,KMGP,KMI, and Does I
28 12
FIRST AMENDED COMPLAINT FOR DAMAGES
I through 300, and each of them, to perform the work on the Project, given, among other
2 things,their poor safety records;
3 (b) Negligently, carelessly and recklessly supervising KMEP, SFPP, KMGP, KMI and
4 Does 1 through 300,and each of them,in the performance of their work on the Project;
5 (c) Negligently,carelessly and recklessly failing to correctly determine the location of the
6 Kinder Pipeline before allowing defendants to excavate in the area of the EBMUD Pipeline
7 . and Kinder Pipeline;
8 (d) Negligently,carelessly and recklessly pressuring and requiring Mountain Cascade and
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AND 9 Does l through 300, and each of them, to complete their work on the Project in a time frame
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10 that was not feasible without endangering the safety of the public and those working on the
11 Project,including Javier Ramos,deceased;
12 (e) Negligently, carelessly and recklessly failing to create, obtain and/or analyze the
13 proper utility maps showing the location of the Kinder Pipeline, prior to allowing Mountain
14 Cascade and Does 1 through 300,and each of them, to excavate near the EBMUD Pipeline
15 and Kinder Pipeline;
16 (f) Negligently, carelessly and recklessly failing to obtain the proper permits and other
17 authority to allow for work to be completed by Mountain Cascade and Does 1 through 300,
18 and each of them,in the vicinity of the Kinder Pipeline and EBMUD Pipeline;
19 (g) Negligently, carelessly and recklessly creating a dangerous condition of public
20 property by performing work, or allowing work to be performed on its behalf,on the Project
21 in the immediate vicinity of the Kinder Pipeline as opposed to another location in the City of
22 Walnut Creek,County of Contra Costa where the Kinder Pipeline was not located;
23 (h) Negligently, carelessly and recklessly failing to require KMEP, SFPP, KMGP, KMI,
24 and Does I through 300,and each of them, to relocate the Kinder Pipeline to a location away
25 from the immediate vicinity of the EBMUD Pipeline and Project;
26 (i) Negligently,carelessly and recklessly failing to notify Mountain Cascade and Does 1
27 through 300,and each of them, of concerns by other entities working on the Project or who
28 13
FIRST AMENDED COMPLAINT FOR DAMAGES
I worked on the project (including among others Modern Continental, KMEP, SFPP, KMGP,
2 KMI,and Does I through 300)regarding the location of the Kinder Pipeline to the vicinity of
3 the EBMUD Pipeline and Project;
4 (j) Negligently, carelessly and recklessly failing to proceed, or requiring KMEP, SFPP,
5 KMGP, KMI and Does 1 through 300, and each of them, to proceed with the work around
6 the Kinder Pipeline and EBMUD Pipeline through safe and acceptable means;
7 (k) Negligently, carelessly and recklessly failing to conduct, or requiring KMEP, SFPP,
8 KMGP,KMI and Does 1 through 300, and each of them, to conduct, daily inspections by a
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AND 9 competent individual prior to the start of work and as needed throughout the shift for
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10 evidence of a situation that could result in dangerous and ultrahazardous condition, such as
11 that which resulted in the death of Javier Ramos,deceased;and
12 (1) Negligently, carelessly and recklessly failing to remove, or requiring KMEP, SFPP,
13 KMGP,KMI and Does 1 through 300,and each of them, to remove, individuals working on
14 the Project, including Javier Ramos, deceased, from the dangerous and ultrahazardous area
15 until necessary precautions had been taken to ensure the safety of those individuals,including
16 Javier Ramos,deceased.
17 46. EBMUD, and Does 1 through 300, inclusive, and each of them, acted negligently,
18 carelessly, and recklessly so as to cause the personal injury and ultimate death of Javier Ramos,
19 deceased,and to legally cause the injuries and damages described below.
20 47. EBMUD, and Does 1 through 300, inclusive, and each of them, knew, or in the
21 exercise of reasonable care should have known, that the conditions constituted an extremely
22 dangerous condition and unreasonable risk of serious injury or death to those who would foreseeably
23 be in the vicinity of the Project or working on the Project,and that the danger would not be apparent
24 to persons such as Javier Ramos, deceased. Under the circumstances of this case involving
25 excavation next to the high-pressure Kinder Pipeline, the conduct of EBMUD, and Does 1 through
26 300, inclusive, and each of them, was an extreme departure from the ordinary standard of conduct
27 and constitutes gross negligence.
28 14
FIRST AMENDED COMPLAINT.FOR DAMAGES
1 48. As a direct and legal result of the negligence and/or gross negligence of EBMUD,and
2 Does 1 through 300,inclusive,and each of them,Javier Ramos,deceased,was hurt and injured in his.
3 health, strength,and activity, and ultimately died 28 hours after hours after the Kinder Pipeline was
4 ruptured and exploded. He suffered unjustifiable and substantial physical pain and mental suffering
5 before his death.
6 49. As a direct and legal result of the negligence and/or gross negligence of EBMUD,and
7 Does 1 through 300, inclusive, and each of them, Javier Ramos incurred personal injuries and
STEINBI 8 damages prior to his death in an amount according to proof at trial.
AND 9 50. As a further direct and legal result of the negligence and/or gross negligence of
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10 EBMUD, and Does 1 through 300, decedent Javier Ramos was killed and plaintiffs sustained the
11 damages as hereinabove alleged.
12 SECOND CAUSE OF ACTION
13NEGLIGENCE AS AGAINST KMEP,SFPP,KMGP,KMI,
14 AND DOES 1 THROUGH 300,INCLUSIVE
15 (By Maria Ramos,individually and as successor in interest to Javier Ramos,deceased;By Erica
16 Ramos,Ramona Ramos,Gricelda Ramos,Jasmin Ramos and Gerardo Ramos,minors)
17 51. Plaintiffs, and each of them, incorporate each and every allegation contained in
18 paragraphs 1 through 50 above,as though fully set forth.herein.
19 52. At all times relevant herein, KMEP, as a limited partnership, SFPP, a limited
20 partnership and operating partnership of KMEP,KMGP as the general partner of KMEP,and KMI as
21 the parent corporation and owner of KMGP, and Does 1 through 300, inclusive, and each of them,
22 were the owners and operators of the Kinder Pipeline.
23 53. Because of the dangerous and ultrahazardous nature of the Project and the Kinder
24 Pipeline, and the location of the Kinder Pipeline in the vicinity of the EBMUD Pipeline, KMEP,
. 25 SFPP,KMGP,KMI, and Does 1 through 300,inclusive, and each of them,had a nondelegable duty
26 to own, supervise, control, and operate the Kinder Pipeline in a safe manner to ensure the safety of
27 the public and those working on the Project,including Javier Ramos,deceased.
28 15
FIRST AMENDED COMPLAINT FOR DAMAGES
1 54. At all relevant times herein, KMEP, SFPP, KMGP, KMI, and Does 1 through 300,
2 inclusive,and each of them,breached said nondelegable duty by,among other things:
3 (a) Negligently, carelessly and recklessly hiring, training, retaining, and supervising its
4 employees, agents, representatives, and independent contractors, including Comforce in the
5 . performance of the work on the Kinder Pipeline in relation to the Project, including but not
6 limited to the determination of the location of the Kinder Pipeline before allowing EBMUD,
7 Mountain Cascade,and Does 1 through 300, and each of them, to excavate and work in the
8 area of the EBMUD Pipeline and Kinder Pipeline;
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AND 9 (b) Negligently, carelessly and recklessly failing to create, obtain and/or analyze the
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10 proper utility maps showing the location of the Kinder Pipeline, prior to allowing EBMUD,
11 Mountain Cascade,and Does 1 through 300, and each of them, to excavate and work in the
12 area of the EBMUD Pipeline and Kinder Pipeline;
13 (c) . Negligently, carelessly and recklessly failing to obtain the proper permits and other
S14 authority to allow for work to be completed in the vicinity of the Kinder Pipeline and
15 EBMUD Pipeline;
16 (d) Negligently, carelessly and recklessly failing to locate and field mark the location of
17 the Kinder Pipeline prior to the excavation by EBMUD, Mountain Cascade and Does 1
18 through 300, inclusive, and each of them, in violation of, among other things, Government
19 Code section 4216.3;
20 (e) Negligently, carelessly and recklessly failing to relocate the Kinder Pipeline to a
21 location away from the immediate vicinity of the Project and EBMUD Pipeline;
22 (f) Negligently, carelessly and recklessly failing to.address the concerns of entities
23 working on the Project or who worked on the project (including among others Modem
24 Continental,EBMUD,and Does 1 through 300, and each of them) regarding the location of
25 the Kinder Pipeline to the vicinity of the EBMUD Pipeline, and failing to inform Mountain
26 Cascade and Does 1 through 300,of these concerns;
27 (g) Negligently,carelessly and recklessly entering into a mutual agreement with EBMUD,
28 16
FIRST AMENDED COMPLAINT FOR DAMAGES
I Mountain Cascade, and Does 1 through 300, and each of them, allowing the use of power-
2 operated or power-driven excavating or boring equipment within the vicinity of the Kinder
3 Pipeline and Project;
4 (h) Negligently, carelessly and recklessly failing to inspect, or failing to inspect as
5 frequently as necessary, the Kinder Pipeline during work on the Project where, through
6 contact with EBMUD and others (including Modem Continental, EBMUD, and Does 1
7 through 300,and each of them,)KMEP,SFPP, KMGP,KMI, Comforce,and Does 1 through
8 300, and each of them, knew or should have known, that the Kinder Pipeline could be
STEINBI
AND 9 damaged by excavation work for the Project;
ASSOC[
10 (i) Negligently, carelessly and recklessly failing, through employees, including Mike
11 Biggs,who was or were on site both the day before the accident and the day it occurred, to
12 inform Mountain Cascade and others excavating in the immediate area, of the known
13 deviation in the Kinder Pipeline, which brought it in close proximity to the excavation of the
14 EBMUD Pipeline,and therefore put workers in immediate danger;and
15 (j) Negligently failing to do all the above, despite knowledge that this same petroleum
16 pipeline had been damaged previously during excavation work,at different locations thereof.
17 ,55. The tortious conduct alleged above by KMEP, SFPP, KMGP, KMI, and Does I
18 through 300, inclusive and each of them, was, among other things, negligent, careless, reckless,
19 grossly negligent and/or despicable, with the despicable conduct being carried on by KMEP, SFPP,
20 KMGP, KMI, and Does 1 through 300, inclusive and each of them, with a willful and conscious
21 disregard of the rights and/or safety of others, including but not limited to Javier Ramos, deceased.
22 Among other things, KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of
23 them, was aware of the probable dangerous consequences of its conduct and willfully and
24 deliberately failed to avoid those consequences,which resulted in the personal injuries and property
25 damage,and subsequent death of Javier Ramos,deceased.
26 56. Defendants KMEP,SFPP,KMGP,KMI,and Does I through 300, inclusive,and each
27 of them, acted so as to cause the personal injury and property damage, and ultimate death of Javier
28 17
FIRST AMENDED COMPLAINT FOR DAMAGES
I Ramos,deceased,and to legally cause the injuries and damages described below.
2 57. Defendants KMEP,SFPP,KMGP,KMI,and Does 1 through 300,inclusive,and each
3 of them, knew, or in the exercise of reasonable care should have known, that the conditions
4 constituted an extremely dangerous condition and unreasonable risk of serious injury or death to
5 those who would foreseeably be in the vicinity of or working on the Project, Kinder Pipeline or
6 EBMUD-Pipeline,and that the danger would not be apparent to those persons,such as Javier Ramos,
7 deceased.
8 58. Defendants KMEP,SFPP,KMGP,KMI,and Does 1 through 300,inclusive, and each
STEINBI
AND 9 of them, willfully and deliberately failed to avoid these consequences or protect others,including
ASSOCI
10 Javier Ramos, deceased, from these consequences. Under the circumstances of this case involving
11 excavation next to the high-pressure Kinder Pipeline, the conduct of KMEP, SFPP, KMGP, KMI,
12 and Does 1 through 300, inclusive, and each of them, was an extreme departure from the ordinary
13 standard of conduct,and constitutes gross negligence,malice,and oppression.
14 59. As a direct and legal result of the alleged conduct of KMEP, SFPP,KMGP,KMI,and
15 Does 1 through 300,inclusive,and each of them,Javier Ramos,deceased,was hurt and injured in his
16 health, strength,and activity,and ultimately died. He suffered unjustifiable and substantial physical
17 pain and mental suffering before his death.
18 60. As a direct and legal result of the negligence and/or gross negligence of KMEP, SFPP,
19 KMGP,KMI,and Does 1 through 300,decedent Javier Ramos was killed and plaintiffs sustained the
20 damages as hereinabove alleged.
21 61. As a further direct and legal result of the alleged conduct of KMEP, SFPP, KMGP,
22 KMI, and Does 1 through 300, inclusive, and each of them, Javier Ramos incurred damage to his
23 person and personal property, before his death,in an amount according to proof at trial. The above-
24 alleged acts of KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of them,
25 were willful, wanton, malicious, oppressive, despicable, and/or fraudulent, and justify an award.of
26 punitive damages. At all times mentioned herein, KMEP, SFPP, KMGP, and KMI, its employees,
27 agents, representatives, independent contractors, and Does 1 through 300, inclusive, and each of
28 18
FIRST AMENDED COMPLAINT FOR DAMAGES
I them were guilty of malice, oppression, fraud,and/or a willful and conscious disregard for the rights
2 of Javier Ramos,deceased. Given the dangerous and ultrahazardous nature of the work performed
3 on the Project, the Kinder Pipeline, and the close proximity of the Kinder Pipeline to the EBMUD
4 Pipeline, KMEP, SFPP, KMGP, and KMI, its agents, employees, independent contractors,
5 representatives,and Does I through 300,inclusive,and each of them,performed work on the Project
6 with a reckless indifference and willful and conscious disregard for the rights of Javier Ramos,
7 deceased.
8 62. Plaintiffs are entitled to punitive damages against KMEP, SFPP, KMGP, KMI, and
STEINBI
AND 9 Does 1 through 300,inclusive,and each of them,as corporate defendants because an officer,director
ASSOC[
10 or managing agent thereof had advance knowledge of the unfitness of its employees and employed
11 or retained them with a conscious disregard of the rights or safety of others,authorized or ratified the
12 wrongful conduct of its agents, employees, representatives, independent contractors, who were
13 acting as an officer, director or managing agent of KMEP, SFPP,KMGP,KMI, and Does 1 through
14 300, and each of them, and which officer, director or managing agent was personally guilty of
15 oppression,fraud and/or malice.
16 THIRD CAUSE OF ACTION
17 NEGLIGENCE
18 AS AGAINST COMFORCE AND DOES 1 THROUGH 300,INCLUSIVE
19 (By Maria Ramos,individually and as successor in interest to Javier Ramos,deceased;By Erica
20 Ramos,Ramona Ramos,Gricelda Ramos,Jasmin Ramos and Gerardo Ramos,minors)
21 63. Plaintiffs, andeach of them, incorporate each and every allegation contained in
22 paragraphs 1 through 62 above,as though fully set forth herein.
23 64. Because of the dangerous and ultrahazardous nature of the Project and the Kinder
24 Pipeline, and the location of the Kinder Pipeline in the vicinity of the EBMUD Pipeline, Comforce,
25 and Does 1 through 300, inclusive, and each of them, had a nondelegable duty under, among other
26 things, OSHA regulations and California statutes and common law, to own, supervise, control,
27 survey,and operate the Kinder Pipeline in a safe manner to ensure the safety of the public and those .
28 19
FIRST AMENDED COMPLAINT FOR DAMAGES
I working on the Project,including Javier Ramos,deceased.
2 65. At all relevant times herein,Comforce,and Does 1 through 300,inclusive, and each of
3 them,breached said nondelegable duty by,among other things:
4 (a) Negligently and carelessly and recklessly hiring,training,retaining,and supervising its
5 employees, agents, representatives, and independent contractors in the performance of the
6 work on the Kinder Pipeline in relation to the Project, including but not limited to the
7 determination of the location of the Kinder Pipeline before allowing EBMUD, Mountain
STEINBI 8 Cascade, and Does I through 300, inclusive, and each of them, to excavate and work in the
AND
ASSOCI 9 area of the EBMUD Pipeline and Kinder Pipeline;
10 (b) Negligently and carelessly and recklessly failing to create, obtain and/or analyze the
11 proper utility maps, plans and drawings showing the location of the Kinder Pipeline,prior to
12 allowing EBMUD,Mountain Cascade, and Does 1 through 300,inclusive, and each of them,
13 to excavate and work in the area of the EBMUD Pipeline and Kinder Pipeline;
14 (c) Negligently and carelessly and recklessly failing to obtain the proper permits and other
15 authority to allow for work to be completed in the vicinity of the Kinder Pipeline and
16 EBMUD Pipeline;
17 (d) Negligently and carelessly and recklessly failing to locate and field mark the location
18 of the Kinder Pipeline prior to the excavation by EBMUD, Mountain Cascade and Does 1
19 through 300, inclusive, inclusive, and each of them, in violation of, among other things,
20 Government Code section 4216.3;and
21 (e) Negligently and carelessly and recklessly failing to inspect, or failing to inspect as
22 frequently as necessary, the Kinder Pipeline during work on the Project where, through
23 contact with EBMUD and others (including Modern Continental, and Does 1 through 300,
24 inclusive,and each of them)Comforce and Does 1 through 300,inclusive, and each of them,
25 knew or should have known, that the Kinder Pipeline could be damaged by excavation work
26 for the Project.
27 66. The tortious conduct alleged above by Comforce, and Does 1 through 300, inclusive
28 20
FIRST AMENDED COMPLAINT FOR DAMAGES
s
I and each of them, was, among other things, negligent, careless, reckless, grossly negligent and/or
2 despicable, with the despicable conduct being carried on by Comforce, and Does 1 through 300,
3 inclusive and each of them, with a willful and conscious disregard.of the rights and/or safety of
4 others, including but not limited to Javier Ramos, deceased. Among other things, Comforce, and
5 Does 1 through 300,inclusive,and each of them,was aware of the probable dangerous consequences
6 of its conduct and willfully and deliberately failed to avoid those consequences,which resulted in the
7 personal injuries and property damage,and subsequent death of Javier Ramos,deceased.
STEINBI 8 67. Comforce, and Does 1 through 300,inclusive,and each of them, acted so as to cause
AND 9 the personal injury and property damage, and ultimate death of Javier Ramos, deceased, and to
ASSOCI
10 legally cause the injuries and damages described below.
11 68. Comforce, and Does 1 through 300, inclusive, and each of them, knew, or in the
12 exercise of reasonable care should have known, that the.conditions constituted an extremely
13 dangerous condition and unreasonable risk of serious injury or death to those who would foreseeably
14 be in the.vicinity of or working on the Project, Kinder Pipeline or EBMUD Pipeline, and that the
15 danger would not be apparent to those persons, such as Javier Ramos, deceased. Defendants
16 Comforce, and Does 1 through 300, inclusive, and each of them, willfully and deliberately failed to
17 avoid these consequences or protect others, including Javier Ramos, deceased, from these
18 consequences. Under the circumstances of this case involving excavation next to the high-pressure
19 Kinder Pipeline,the conduct of Comforce,and Does 1 through 300,inclusive, and each of them,was
20 an extreme departure from the ordinary standard of conduct, and constitutes gross negligence;
21 malice,and oppression.
22 69. As.a direct and legal result of the alleged conduct of defendants Comforce, and Does
.23 1 through 300, inclusive, and each of them, Javier Ramos, deceased, was hurt and injured in his
24 health,strength,and activity,and ultimately died. He suffered unjustifiable and substantial physical
25 pain and mental suffering before his death.
26 70. As a direct and legal result of the negligence and/or gross negligence of Comforce,
27 and Does 1 through 300, decedent Javier Ramos was killed and plaintiffs sustained the damages as
28 21
FIRST AMENDED COMPLAINT FOR DAMAGES
I hereinabove alleged.
2 71. The above-alleged acts of Comforce, and Does 1 through 300, inclusive, and each of
3 them,were willful,wanton,malicious,oppressive,despicable,and/or fraudulent,and justify an award
4 of punitive damages. At all times mentioned herein, Comforce, its employees, agents,
5 representatives, independent contractors, and Does 1 through 300, inclusive, inclusive, and each of
6 them were guilty of malice, oppression, fraud, and/or a willful and conscious disregard for the rights
7 of Javier Ramos,deceased. Given the dangerous and ultrahazardous nature of the work performed
STEINBI 8 on the Project, the Kinder Pipeline, and the-close proximity of the Kinder Pipeline to the EBMUD
AND 9 Pipeline, Comforce, its agents, employees, independent contractors, representatives, and Does 1
ASSOCI
10 through 300,inclusive,and each of them,performed work on the Project with a reckless indifference
11 and willful and conscious disregard for the rights of Javier Ramos,deceased.
12 72. Plaintiffs are entitled to punitive damages against Comforce,and Does 1 through 300,
13 inclusive, and each of them, as corporate defendants because an officer, director or managing agent
14 thereof had advance knowledge of the unfitness of its employees and employed or retained them
15 with a conscious disregard of the rights or safety of others, authorized or ratified the wrongful
16 conduct of its agents, employees, representatives, independent contractors, who were acting as an
17 officer, director or managing agent of Comforce, and Does 1 through 300, inclusive, and each of
18 them, and which officer, director or managing agent was personally guilty of oppression, fraud
19 and/or malice.
20
21 FOURTH CAUSE OF ACTION
22 NEGLIGENCE
23 AS AGAINST CAROLLO,CDM AND DOES 1 THROUGH 300,INCLUSIVE
24 (By Maria Ramos,individually and as successor in interest to Javier Ramos,deceased;By Erica
25 Ramos,Ramona Ramos,GriceIda Ramos,Jasmin Ramos and Gerardo Ramos,minors)
26 73. Plaintiffs incorporate each and every allegation contained in paragraphs 1 through 72
27 above,as though fully set forth herein.
• 28 22
FIRST AMENDED COMPLAINT FOR DAMAGES
1 74. At all times relevant herein, Carollo, CDM, and Does 1 through 300, inclusive, and
2 each of them, were engaged in the business of providing consulting, design and related engineering
3 services for the Project. Carollo, CDM, and Does 1 through 300, inclusive, and each of them,
4 provided their drawings and plans to,among others,EBMUD.
5 75. Because of the dangerous and ultrahazardous nature of the Project, the Kinder
6 Pipeline and contents thereof, and the location of the Kinder Pipeline in the vicinity of the EBMUD
7 Pipeline and the Project, Carollo,CDM,and Does 1 through 300, inclusive, and each of them,had a
STEINBI 8 nondelegable duty under, among other things, OSHA regulations and California statutes and
AND
ASSOCt 9 common law,to plan and design the Project in a safe manner to ensure the safety of the public and
10 those working on the Project,including Javier Ramos,deceased.
11 76. At all relevant times herein, Carollo, CDM, and Does 1 through 300, inclusive, and
12 each of them,breached said nondelegable duty by,among other things:
13 (a) Improperly preparing and designing the plans and maps for the Project. Carollo,
14 CDM, and Does 1 through 300, inclusive, and each of them, were aware of the incursion of
15 the Kinder Pipeline into the Project's path,as evidenced by their drawings;
16 (b) Improperly failing to evaluate the need for re-design of the Project at the time they,
17 and each of them, became aware of and discovered the proximity of the Kinder Pipeline to
18 the proposed EBMUD pipeline,and the incursion of the Kinder Pipeline into the Project;
19 (c) Improperly failing to address missing data or request additional data after reviewing
20 the pot-holing data derived from field data in the vicinity of station 100+15;
21 (d) With respect to CDM, and Does 1 through 300, inclusive, and each of them,
22 . improperly entering into a subcontract with Carollo regarding the portion of the Project at
23 issue in this lawsuit;and
24 (e) With respect to CDM and Does I through 300, inclusive, and each of them,
25 improperly supervising Carollo regarding its work on the portion of the Project at issue.in this
26 lawsuit.
27 77. Carollo,CDM,and DOES I through 300,inclusive,inclusive, and each of them,acted
28 23
FIRST AMENDED COMPLAINT FOR DAMAGES
I so as to cause the personal injury and property damage, and ultimate death of Javier Ramos,
2 deceased,and to legally cause the injuries and damages described below.
3 78. Carollo,CDM, and Does 1 through 300, inclusive, and each of them, knew, or in the
4 exercise of reasonable care should have known, that the conditions constituted an extremely
5 dangerous condition and unreasonable risk of serious injury or death to those who would foreseeably
6 be in the vicinity of or working on the Project, Kinder Pipeline or EBMUD Pipeline, and that the
7 danger would not be apparent to those persons,such as JAVIER RAMOS,deceased. Carollo, CDM,
STEINBI 8 and Does 1 through 300, inclusive, and each of them, failed.to avoid these consequences or protect
AND 9 others,including Javier Ramos,deceased,from these consequences. Under the circumstances of this
ASSOCI
10 case involving excavation next to the high-pressure Kinder Pipeline, the conduct of Carollo, CDM,
11 and Does I through 300, inclusive, and each of them, was an extreme departure from the ordinary
12 standard of conduct.
13 79. As a direct and legal result of the alleged conduct of defendants Carollo, CDM, and
14 Does I through 300,inclusive,and each of them,Javier Ramos,deceased,was hurt and injured in his
15 health, strength, and activity,and ultimately died. He suffered unjustifiable and substantial physical
16 pain and mental suffering before his death.
17 80. As a direct and legal result of the negligence and/or gross negligence of Carollo,CDM,
18 and Does 1 through 300, decedent Javier Ramos was killed and plaintiffs sustained the damages as
19 hereinabove alleged.
20 8.1. The above-alleged acts of Carollo,CDM,and Does 1 through 300,inclusive,and each
21 of them, were willful, wanton, malicious, oppressive, despicable, and/or fraudulent, and justify an
22 award of punitive damages. At all times mentioned herein, Carollo, CDM, and their employees,
23 agents, representatives, independent contractors, and Does 1 through 300, inclusive, inclusive, and
24 each of them were guilty of malice, oppression, fraud, and/or a willful and conscious disregard for
25 the rights of Javier Ramos, deceased. Given the dangerous and ultrahazardous nature of the work
26 performed on the Project, the Kinder Pipeline, and the close proximity of the Kinder Pipeline to the
27 EBMUD Pipeline,Carollo, CDM,their agents, employees, independent contractors, representatives,
28 24
FIRST AMENDED COMPLAINT FOR DAMAGES
I and Does 1 through 300, inclusive,and each of them,performed work on the Project with a reckless
2 indifference and willful and conscious disregard for the rights of Javier Ramos,deceased.
3 82. Plaintiffs are entitled to punitive damages against Carollo, CDM, and Does 1 through
4 300, inclusive, and each of them, as corporate defendants because an officer, director or managing
5 agent thereof had advance knowledge of the unfitness of its employees and employed or retained
6 them with a conscious disregard of the rights or safety of others, authorized or ratified the wrongful
7 conduct of its agents, employees, representatives, independent contractors, who were acting as an
8 officer,director or managing agent of Carollo, CDM,and Does 1 through 300,inclusive, and each of
STEINBI
AND 9 them, and which officer, director or managing agent was personally guilty of oppression, fraud
ASSOCI
10 and/or malice.
11 FIFTH CAUSE OF ACTION
12 NEGLIGENCE FOR VIOLATION OF VEHICLE CODE SECTION 17151 AS AGAINST
. 13 DOES 1 THROUGH 300,INCLUSIVE
14 (By Maria Ramos,individually and as successor in interest to Javier Ramos,deceased;By Erica
15 Ramos,Ramona Ramos,Gricelda Ramos,Jasmin Ramos and Gerardo Ramos,minors)
16 83. Plaintiffs incorporate each and every allegation contained in paragraphs 1 through 82
17 above,as though fully set forth herein.
18 84. Plaintiffs are ignorant of the true names and capacities of the owner(s)and/or bailee(s)
19 of the backhoe vehicle which struck the Kinder Pipeline,and therefore sue these defendants as Does
20 1 through 300,by such fictitious names. Plaintiffs will amend this complaint to allege the true names
21 and capacities when ascertained. Plaintiffs are informed and believe, and on that basis allege, that
22 each of said fictitiously named defendants is responsible in some manner for the occurrences herein
23 alleged,and that the injuries herein alleged were proximately caused by said conduct.
24 85. Defendants Does 1 through 300, and each of them,were the owner(s) or bailee(s) of
25 the backhoe vehicle which struck the Kinder Pipeline, causing the flammable material within to
26 escape. At all times relevant herein, the operator of the backhoe vehicle (Does 1 through 300, and
27 each of them)was using, operating and/or driving the backhoe vehicle with the permission, consent
28 25
FIRST AMENDED COMPLAINT FOR DAMAGES
I and knowledge of the owner(s)or bailee(s)of the backhoe vehicle.
2 86. The backhoe operator(Does 1 through 300,and each of them) was a permissive user
3 of the backhoe vehicle which struck the Kinder Pipeline.
4 87. Defendants Does 1 through 300, inclusive, and each of them, acted negligently,
5 carelessly, and recklessly so as to cause the personal injury and ultimate death of Javier Ramos,
6 deceased,and to legally cause the injuries and damages described below.
7 88. Defendants Does 1 through 300,inclusive,and each of them,knew, or in the exercise
8 of reasonable care should have known, that the conditions constituted an extremely dangerous
STEINBI
AND 9 condition and unreasonable risk of serious injury or death to those who would foreseeably be in the
ASSOCI
10 vicinity of or working on the Project,EBMUD Pipeline,and that the danger would not be apparent to
11 persons such as Javier Ramos,deceased. Under the circumstances of this case involving excavation
12 next to the high-pressure Kinder Pipeline,the conduct of Does 1 through 300,inclusive, and each of
13 them, was an extreme departure from the ordinary standard of conduct, and constitutes gross
14 negligence.
15 89. As a direct and legal result of the negligence and/or gross negligence of defendants
16 Does 1 through 300,inclusive,and each of them,Javier Ramos,deceased,was hurt and injured in his
17 health, strength, and activity, and ultimately died. Prior to his death, he suffered unjustifiable and
18 substantial physical pain and mental suffering.
19 90. As a further direct and legal result of the negligence and/or gross negligence.of
20 Defendants Does 1 through 300, inclusive, and each of them, Javier Ramos incurred personal and
21 property damage in an amount according to proof at trial.
22 91. As a further direct and legal result of the negligence and/or gross negligence of
23 defendants Does I through 300, inclusive, and each of them, Javier Ramos, deceased, incurred
24 injuries leading to his death,and plaintiffs sustained the damages as hereinabove alleged.
25 SIXTH CAUSE OF ACTION
26 NEGLIGENT OPERATION OF MOTOR VEHICLE AS AGAINST
27 DOES I THROUGH 300,INCLUSIVE
28 26
FIRST AMENDED COMPLAINT FOR DAMAGES
I (By Maria Ramos,individually and as successor in interest to Javier Ramos,deceased;By Erica
2 Ramos,Ramona Ramos,Gricelda Ramos,Jasmin Ramos and Gerardo Ramos,minors)
3 92. Plaintiffs, and each of. them, incorporate each and every allegation contained in
4 paragraphs 1 through 91 above,as though fully set forth herein.
5 93. Plaintiffs,and each of them,are ignorant of the true name and capacity of the driver or
6 operator of the backhoe vehicle which struck the Kinder Pipeline, and therefore sues this defendant
7 as Does 1 through 300, by such fictitious name. Plaintiffs will amend this complaint to allege the
8 operator's true name and capacity when ascertained. Plaintiffs are informed and believe,and on that
STEINBI
AND 9 basis allege,that the fictitiously named defendant is responsible in some manner for the occurrences
ASSOCI
10 herein alleged,and that the injuries herein alleged were proximately caused by his conduct.
11 94. Defendants Does 1 through 300,was the driver/operator of the backhoe which struck
12 the Kinder Pipeline, causing the flammable material within to escape. At all times relevant herein,
13 Does 1 through 300,negligently and carelessly drove,operated or controlled the backhoe vehicle so
14 as to cause it to strike the Kinder Pipeline.
15 95. Defendants Does 1 through 300, and each of them, was a permissive user of the
16 backhoe vehicle which struck the Kinder Pipeline.
17 96. Defendants Does 1 through 300, inclusive, and each of them, acted negligently,
18 carelessly, and recklessly so as to cause the personal injury and ultimate death of Javier Ramos,
19 deceased,and to legally cause the injuries and damages described below.
20 97. Defendants Does 1 through 300,inclusive, and each of them,knew,or in the exercise
21 of reasonable care should have known, that the conditions constituted an extremely dangerous
22 condition and unreasonable risk of serious injury or death to those who would foreseeably be in the
23 vicinity of or working on the Project, EBMUD Pipeline, or Kinder Pipeline, and that the danger
24 would not be apparent to persons such as Javier Ramos,deceased. Under thecircumstances of this
25 case involving excavation next to the high-pressure Kinder Pipeline,the conduct of defendants Does
26 1 through 300,inclusive,and each of them,was an extreme departure from the ordinary standard of
27 conduct,and constitutes gross negligence.
28 27
FIRST AMENDED COMPLAINT FOR DAMAGES
1 98. The tortious conduct alleged above by defendants Does 1 through 300, inclusive and
2 each of them, was, among other things, negligent, careless, reckless, grossly negligent and/or
3 despicable, with the despicable conduct being carried on by defendants Does 1 through 300, and
4 each of them, with a willful and conscious disregard of the rights and/or safety of others, including
5 but not limited to Javier Ramos,deceased. Among other things,defendants Does 1 through 300,and
6 each of them, was aware of the probable dangerous consequences of its conduct and willfully and
.7 deliberately failed to avoid those consequences,which resulted in the personal injuries and property
STEINBI 8 damage,and subsequent death of Javier Ramos,deceased.
AND 9 99. As a direct and legal result of the negligence and/or gross negligence of defendants
ASSOCI
10 Does I through 300,inclusive,and each of them,Javier Ramos,deceased,was hurt and injured in his
11 health, strength, and activity, and ultimately died. Prior to his death, he suffered unjustifiable and
12 substantial physical pain and mental suffering.
13 100. As a further direct and legal result of the negligence and/or gross negligence of
14 defendants Does 1 through 300,inclusive, and each of them,Javier Ramos,deceased,incurred,prior
15 to his death, damage to his person and personal property in an amount according to proof at trial.
16 The above-alleged acts of defendants Does 1 through 300,inclusive, and each of them, were willful,
17 wanton, malicious, oppressive, despicable, and/or fraudulent, and justify an award of punitive
18 damages. At all times mentioned herein, defendants Does 1 through 300, its employees, agents,
19 representatives,independent contractors were guilty of malice,oppression,fraud,and/or a willful and
20 conscious disregard for the rights of Javier Ramos, deceased. Given the dangerous and
21 ultrahazardous nature of the work performed on the Project, the Kinder Pipeline, and the close
22 proximity of the Kinder Pipeline to the EBMUD Pipeline, Does 1 through 300, and each of them,
23 performed work on the Project with a reckless indifference and willful and conscious disregard for
24 the rights of Javier Ramos,deceased.
25 101. Plaintiffs are entitled to punitive damages against defendants Does 1 through 300,
26 inclusive, and each of them, as corporate defendants because an officer, director or managing agent
27 thereof had advance knowledge of the unfitness of its employees and employed or retained them
28 28
FIRST AMENDED COMPLAINT FOR DAMAGES
I with a conscious disregard of the rights or safety of others, authorized or ratified the wrongful
2 conduct of its agents, employees, representatives, independent contractors, who were acting as an
3 officer, director or managing agent of Does I through 300, and each of them, and which officer,
4 director or managing agent was personally guilty of oppression, fraud and/or malice. Plaintiffs are
5 entitled to punitive damages against defendants Does I through 300, and each of them, as they are
6 personally guilty of malice,oppression or fraud.
7
STEINBI
AND 9
ASSOCI
10
11 SEVENTH CAUSE OF ACTION
12 STRICT LIABILITY AS AGAINST KMEP,SFPP,KMGP,KMI,COMFORCE,AND
13 DOES 1 THROUGH 300,INCLUSIVE
14 (By Maria Ramos,individually and as successor in interest to Javier Ramos,deceased;By Erica
15 Ramos,Ramona Ramos,Gricelda Ramos,Jasmin Ramos and Gerardo Ramos,minors)
16 102. Plaintiffs, and each of them, incorporate each and every allegation contained in
17 paragraphs 1 through 101 above,as though fully set forth herein.
18 103. Defendants KMEP, SFPP, KMGP, KMI, Comforce, and Does 1 through 300,
19 inclusive,and each of them,designed,manufactured, sold, owned, controlled, operated,maintained,
20 inspected, distributed, transported, located, field marked, monitored, and managed the Kinder
21 Pipeline and ultrahazardous and flammable material contained therein.
22 104. Such activities create the existence of a high degree of risk of harm to persons, land
23 and personal property of others,create the likelihood that harm that results from it will be great, and
24 are inappropriate to the surrounding of residential neighborhoods, schools and highly-populated
25 communities where it was carried on, such that their value to such communities is outweighed by
26 their dangerous attributes.
27 105. Because of the dangerous and ultrahazardous nature and condition of the Kinder
28 29
FIRST AMENDED COMPLAINT FOR DAMAGES
1 Pipeline and contents contained therein, and the location of the Kinder Pipeline in the vicinity of the
2 EBMUD Pipeline and Project, KMEP, SFPP, KMGP, KMI, Comforce, and Does 1 through 300,
3 inclusive, and each of them, had a nondelegable duty to own, supervise, control, operate, manage,
4 locate,field mark,monitor,and inspect the Kinder Pipeline accurately and in a safe manner to ensure
5 the safety of the public and those working on the Project,including Javier Ramos,deceased.
6 106. As set forth above, Javier Ramos, deceased, was killed while working on the Project
7 and EBMUD Pipeline. The activities of KMEP, SFPP,KMGP,KMI,Comforce,and Does 1 through
8 300,and each of them,were a substantial factor in causing injury and the subsequent death of Javier
STEINBI
AND 9 Ramos,deceased. The harm to Javier Ramos,deceased,was of the kind that would be anticipated as
ASSOCI
10 a result of the risk created by owning, supervising, controlling, operating, managing, locating, field
11 marking, monitoring, and inspecting the Kinder Pipeline through a residential neighborhood, near a
12 school and through a highly-populated community.
13 107. Defendants KMEP, SFPP, KMGP, KMI, Comforce, and Does 1 through 300,
14 inclusive, and each of them, caused the personal injury and ultimate death of Javier Ramos,
15 deceased,and legally caused the injuries and damages described below.
16 108. As a direct and legal result of the dangerous and ultrahazardous conditions designed,
17 manufactured, sold, owned, controlled, operated, maintained, inspected, distributed, transported,
18 located, field marked, monitored, and managed by defendants KMEP, SFPP, KMGP, KMI,
19 Comforce,and Does 1 through 300, inclusive, and each of them, Javier Ramos, deceased, was hurt
20 and injured in his health, strength, and activity, and ultimately died. He suffered unjustifiable and
21 substantial physical pain and mental suffering before his death.
22 109. As a further direct and legal result of the dangerous and ultrahazardous conditions
23 designed, manufactured, sold, owned, controlled, operated, maintained, inspected, distributed,
24 transported, located, field marked, monitored, and managed by defendants KMEP, SFPP, KMGP,
25 KMI, Comforce, and Does 1 through 300, inclusive, and each of them, Javier Ramos, incurred
26 damage to his personal property, before his death, in an amount according to proof at trial. The
27 above-alleged acts of defendants KMEP, SFPP, KMGP, KMI, Comforce, and Does 1 through 300,
28 30
FIRST AMENDED COMPLAINT FOR DAMAGES
I inclusive, and each of them, were willful, wanton, malicious, despicable, oppressive, and/or
2 fraudulent, and justify an award of punitive damages. At all times mentioned herein, defendants
3 KMEP, SFPP, KMGP, KMI, Comforce, its employees, agents, representatives, independent
4 contractors, and Does 1 through 300,inclusive, and each of them were guilty of malice, oppression,
5 fraud, and/or a willful and conscious disregard for the rights of Javier Ramos, deceased. Given the
6 dangerous and ultrahazardous nature of the work performed on the Project,the Kinder Pipeline, and
7 the close proximity of the Kinder Pipeline to the EBMUD Pipeline, KMEP, SFPP, KMGP, KMI,
8 Comforce, its agents,employees, independent contractors,representatives,and Does 1 through 300,
STEINBI
AND 9 inclusive, and each of them, performed work on the Project with a reckless indifference and willful
ASSOCI
10 and conscious disregard for the rights of Javier Ramos,deceased.
11 110. Plaintiffs are entitled to punitive damages against defendants KMEP, SFPP, KMGP,
12 KMI, Comforce, and Does 1 through 300, inclusive, and each of them, as corporate defendants
13 because an officer,director or managing agent thereof had advance knowledge of the unfitness of its
.14 employees and employed or retained them with a conscious disregard of the rights or safety of
15 others, authorized or ratified the wrongful conduct of its agents, employees,- representatives,
16 independent contractors who were acting as an officer,director or managing agent of KMEP, SFPP,
17 KMGP,KMI, Comforce,and Does 1 through 300, and each of them, and which officer, director or
18 managing agent was personally guilty of oppression,fraud and/or malice.
19 EIGHTH CAUSE OF ACTION
20 WILLFUL MISCONDUCT
21 AGAINST KMEP,SFPP,KMGP,KMI,AND DOES 1 THROUGH 300,INCLUSIVE
22 (By Maria Ramos,individually and as successor in interest to Javier Ramos,deceased;By Erica
23 Ramos,Ramona Ramos,Gricelda Ramos,Jasmin Ramos and Gerardo Ramos,minors)
24 111. Plaintiffs, and each of them, incorporate each and every allegation contained in
25 paragraphs 1 through 110 above,as though fully set forth herein.
26 112. KMEP, SFPP, KMGP, KMI, and Does I through 300, inclusive, and each of them,
27 knew that construction workers were excavating a trench in connection with the Project, in
28 31
FIRST AMENDED COMPLAINT FOR DAMAGES
I accordance with the written contract between EBMUD and Mountain Cascade, and Does 1 through
2 300, inclusive, and each of them. KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive,
3 and each of them, knew that the route of the EBMUD Pipeline was to be parallel to, east of and
4 above the Kinder Pipeline,which was owned and operated by KMEP,SFPP,KMGP,KMI and Does
5 1 through 300,inclusive,and each of them.
6 113. KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of them,
7 were the operators or owners of a subsurface installation within the meaning of Government Code
8 section 4216.
STEINBI
AND 9 114. KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of them,
ASSOCI
10 knew that EBMUD's contract with Mountain Cascade,and Does 1 through 300, inclusive, and each
1 I of them,required compliance with all applicable statutes,laws,regulations,orders and standards.
12 115. KMEP, SFPP, KMGP, KMI, and Does I through 300, inclusive, and each of them,
13 knew that to guard against extreme risk of injury to persons and property, including those working
14 on the Project such as Javier Ramos, deceased, the contract between EBMUD and Mountain
15 Cascade, and Does 1 through 300, inclusive, specified, among other things, that work along South
16 Broadway in Walnut Creek, California was adjacent to the Kinder Pipeline, that construction
17 activities should be coordinated with,among others,Larry Hosler,manager pipeline maintenance and
18 Roy Bridge, manager pipeline safety, for KMEP, SFPP, KMGP, KMI, and Does 1 through 300,
19 inclusive,and Mountain Cascade.
20 116. KMEP, SFPP, KMGP, KMI, and Does I through 300, inclusive, and each of them,
21 knew that the Kinder Pipeline had to be properly located in advance of excavation to avoid any
22 physical contact with the Kinder Pipeline as a result of any construction activities.
23 117. KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of them,
24 were aware of their respective responsibilities under,among other things,the Government Code and
25 Code of Regulations to properly plan and design the Project and determine the.location of and
26 properly field mark the Kinder Pipeline to allow for safe excavation in the vicinity thereof.
27 118. KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of them,
28 32
FIRST AMENDED COMPLAINT FOR DAMAGES
I knew that operating, locating, field marking, and excavating in the vicinity of the Kinder Pipeline
2 created the existence of a special, high degree of risk of harm to persons and property, including
3 those working on the Project with welding tools, such as Javier Ramos, deceased. KMEP, SFPP,
4 KMGP, KMI, and Does 1 through 300, inclusive, and each of them, knew that Mountain Cascade
5 and its employees including Javier Ramos,deceased, were working on the EBMUD Pipeline, which
6 considerably increased the extreme risk of harm due to highly flammable nature of the contents of
7 the Kinder Pipeline.
8 119. KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of them,
STEINBI
AND 9 knew that those working on the Project, including Javier Ramos, deceased, would rely on, among
ASSOCI
10 others, KMEP, SFPP, KMGP,KM1, and Does I through 300, inclusive, and each of them, for their
11 safety to properly design,plan, locate, field mark,and excavate in the vicinity of the Kinder Pipeline
12 in compliance with state laws,statutes,orders,and regulations.
13 120. KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of them,
14 has experienced several accidents relating to its pipelines,including but not limited to those incidents
15 referenced in the General Allegations set forth above. KMEP, SFPP, .KMGP, KMI, and Does 1
16 through 300, inclusive, and each of them, have experienced at least 44 accidents relating to its
17 pipelines since January 1,2003. Of these 44 accidents, at least 14 resulted in releases of more than
18 five barrels of refined petroleum products into the surrounding environment. At least 8 known
19 accidents resulting in releases into the surrounding environment have occurred since April 27, 2004.
20 All 8 of these accidents occurred in or near high consequence areas(as defined in 49 C.F.R. section
21 195.450)and/or major transportation corridors. Of these 8 accidents, 5 are attributed to outside force
22 damage (e.g. third party damage caused by an excavator or other source, damage caused during
23 construction,etc.) At least 3 of these 5 instances went unaddressed by KMEP, SFPP,KMGP,KMI,
24 and Does 1 through 300, inclusive, and each of them, for an indeterminate period despite internal
25 inspection tool runs conducted on the pipelines prior to the accidents. Approximately 50% of
26 reported hazardous liquid pipeline accidents suffered by KMEP, SFPP, KMGP, KMI, and Does 1
27 through 300,inclusive,.and each of them,between 1998 and 2003 were caused by outside forces.
28 33
FIRST AMENDED COMPLAINT FOR DAMAGES
1 121. According to the United States Department of Transportation's "Pipeline and
2 Hazardous Materials Safety Administration," the recent accidents of KMEP, SFPP, KMGP, KMI,
3 and Does 1 through 300, inclusive, and each of them, indicate a "widespread failure to adequately
4 detect and address the effects of outside force damage and corrosion. This failure has systematically
5 affected the integrity of the Pacific Operations Unit." This pattern and practice of KMEP, SFPP,
6 KMGP,KMI,and Does 1 through 300,inclusive,and each of them, is one to put profits over people,
7 in that KMEP,SFPP,KMGP,KMI,and Does I through 300,inclusive,and each of them,believe that
8 few adverse consequences will result from its failures to avoid accidents involving the pipelines.This
STEINBI
AND 9 systematic failure flows from the top on down through the corporate levels of KMEP,SFPP,KMGP,
ASSOCI
10 KMI, and Does 1 through 300, inclusive, and each of them, and includes those decision making
11 individuals including the officers,directors and managing agents of KMEP, SFPP,KMGP,KMI,and
12 Does I through 300,inclusive,and each of them.
13 122. KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of them,
14 knew that the initial contract with EBMUD was awarded to Modern Continental,which contract was
15 terminated by EBMUD. KMEP,SFPP,KMGP,KMI,and Does l through 300,inclusive,and each of
16 them, knew that in or about 2003 or 2004, Modern Continental was excavating for the EBMUD
17 Pipeline and determined that a segment of the Kinder Pipeline was approximately 13 feet from where
18 it had been field marked by KMEP,SFPP,KMGP,KMI,and Does 1 through 300,inclusive,and each
19 of them. Modern Continental expressed this concern to, among others, EBMUD, KMEP, SFPP,
20 KMGP, KMI, Comforce, and Does 1 through 300, inclusive, and each of them. In addition, in or
21 about August of 2003,EBMUD requested that KMEP,SFPP,KMGP,KMI,and Does 1 through 300,
22 inclusive, and each of them, relocate a section of the Kinder Pipeline because it was, among other
23 things,hard to locate and a hindrance to completion of the Project. In or about early 2004,Modern
24 Continental, EBMUD, and Does 1 through 300, inclusive, and each of them, were extremely
25 concerned about the location of the Kinder Pipeline because it was still in the way of the excavation
26 for the EBMUD Pipeline and Project. Among others,Modern Continental,EBMUD,KMEP, SFPP,
27 KMGP, KMI, and Does 1 through 300, inclusive, and each of them, discussed in early 2003 the
28 34
FIRST AMENDED COMPLAINT FOR DAMAGES
I location of the Kinder Pipeline and how to continue working on the Project despite the location of
2 the Kinder Pipeline.
3 123. KMEP, SFPP, KMGP, KMI, and DOES 1 through 300, inclusive, and each of them,
4 knew that prior to November 9,2004,KMEP,SFPP,KMGP,KMI and Does 1 through 300,inclusive,
5 and each of them, had numerous recent accidents involving its pipelines, and also had numerous
6 recent workplace injuries.
7 124. Because of the construction work in the direct vicinity of the high pressure Kinder
8 Pipeline, KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of them, knew
STEINBI
AND 9 that it had to guard against the extreme risk of injury to persons and/or property in the area,including
ASSOCI
10 those persons working on the Project along with the general public. KMEP, SFPP, KMGP, KMI,
11 and Does I through 300, inclusive, and each of them, knew.that construction activities were to be
12 coordinated with all parties participating in the Project.
13 125. KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of them,
14 knew of the peril of an explosion if the flammable liquids or gasses inside the Kinder Pipeline
15 escaped in the vicinity of the construction of the EBMUD Pipeline where workers, including Javier
16 Ramos, deceased, worked with welding tools. KMEP, SFPP, KMGP, KMI, Comforce, and Does 1
17 through 300, inclusive, and each of them, knew that the injury and subsequent death of Javier
18 Ramos, deceased, was a probable, as opposed to possible, result of that danger, as Javier Ramos,
19 deceased, was working inside the EBMUD Pipeline using welding tools, and had no means of
20 making an easy or fast escape in the event of an explosion and thus would be trapped inside the
21 EBMUD Pipeline.
22 126. At all relevant times herein, KMEP, SFPP, KMGP, KMI, and Does 1 through 300,
23 inclusive,and each of them,intentionally,knowingly,deliberately,and/or consciously failed to avoid
24 the above referenced peril by,among other things:
25 (a) Failing to hire, train, retain and supervise its employees, representatives, agents and
26 independent contractors with respect to the performance of the work on the Project. For
27 example, employees lacked the experience and knowledge to read the maps and drawings
28 35
FIRST AMENDED COMPLAINT FOR DAMAGES
•
I showing the location of the Kinder Pipeline,and in fact,failed to even review such maps and
2 drawings. KMEP,SFPP,KMGP,KMI,and Does 1 through 300,inclusive, and each of them,
3 failed to train its employees with respect to the importance of reviewing and analyzing the
4 necessary maps and drawings to determine the accurate location of the Kinder Pipeline, and
5 how to review and analyze such drawings and maps;
6 (b) Failing to correctly determine the location of the Kinder Pipeline before allowing
7 excavation in the area of the EBMUD Pipeline and Kinder Pipeline,pursuant to,among other
STEINBI 8 things,Government Code section 4216.4.Among others,Mike Biggs,Peter Brooks,and Mark
AND 9 Presley failed to review and analyze the maps and drawings,and instead relied on their visual
ASSOCI
10 observation that there was no tree in the area of the Kinder Pipeline. In fact,the tree had been
I I removed years prior but the roots still existed and the offset of the Kinder Pipeline was
12 present;
13 (c) Failing to create, obtain and/or analyze the proper utility maps, plans and drawings
14 showing the location of the Kinder Pipeline, prior to allowing EBMUD, Mountain Cascade,
15 and Does 1 through 300,inclusive,and each of them,to excavate and work in the area of the .
16 EBMUD Pipeline and Kinder Pipeline;
17 (d) Failing to relocate the Kinder Pipeline to a location away from the immediate vicinity
18 of the Project and EBMUD Pipeline after concerns were previously brought forth by,among
19 others,EBMUD and Modern Continental regarding the location of the Kinder Pipeline to the
20 EBMUD Pipeline and Project.
21 (e) Failing to address the concerns of entities working on the Project or who worked on
22 the project(including among others Modern Continental,EBMUD,and Does 1 through 300,
23 inclusive,and each of them)regarding the location of the Kinder Pipeline to the vicinity of the
24 EBMUD Pipeline,and failing to inform Mountain Cascade and Does 1 through 300,inclusive,
25 and each of them,of these concerns;
26 (f) Falsely representing to Mountain Cascade, EBMUD and others the location of the
27 Kinder Pipeline, such that Mike Biggs, Mark Presley and Peter Brooks stated to EBMUD,
28 36
FIRST AMENDED COMPLAINT FOR DAMAGES
I Mountain Cascade, and others that the field marking was accurate,that excavators need only
2 follow the field marking devices to avoid conflict with the Kinder Pipeline and that additional
3 locating and monitoring was unnecessary. The Kinder Pipeline was not located where
4 KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of them,
5 represented it to be. Further,KMEP, SFPP,KMGP,KMI,and Does 1 through 300,inclusive,
6 and each of them, failed to locate and field mark the location which may be affected by the
7 excavation to the extent and degree of accuracy that the information was available either in
8 their own records or through standard locating techniques other than excavation. In fact,
STEINBI
AND 9 Mark Presley admitted that he often did not even use drawings or maps,as he found them to
ASSOCI
10 be inaccurate. Mr. Presley stated that the Kinder Pipeline only bent around tree roots, and
I I since he saw no tree,the Kinder Pipeline did not deviate from a straight path;and
12 (g) Falsely representing to Mountain Cascade, EBMUD and others that they employed
13 properly trained and supervised personnel to locate and field mark the Kinder Pipeline.
14 Among others, both Mike Biggs, Mark Presley and Peter Brooks lacked the skills and
15 experience necessary to accurately read and interpret drawings and maps, and to actually
16 know that the reading of drawings and maps was crucial to locating the Kinder Pipeline.
17 127. The conduct alleged above by KMEP, SFPP, KMGP,KMI,and Does 1 through 300,
18 inclusive, inclusive and each of them, was,among other things,despicable conduct being carried on
19 with a willful and conscious disregard of the rights and/or safety of others, including but not limited
20 to Javier Ramos,deceased. Among other things, KMEP, SFPP, KMGP, KMI, and Does 1 through
21 300, inclusive, and each of them,was aware of the probable dangerous consequences of its conduct
. 22 and willfully and deliberately failed to avoid those consequences, which resulted in the personal
23 injuries and property damage,and subsequent death of Javier Ramos,deceased.
24 128. When KMEP, SFPP, KMGP, KMI, and Does I through 300, inclusive, and each of
25 them, made the representations as set forth above, they knew them to be false, had no reasonable
26 ground for believing them to be true, and knew that they did not have the knowledge which they
27 professed.
28 37
FIRST AMENDED COMPLAINT FOR DAMAGES
1 I29. Although the representations were not made directly to Javier Ramos, deceased,
2 KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of them, made the
3 representations to Mountain Cascade.and others with the intent that such representations be relied
4 upon in excavating the EBMUD Pipeline. Javier Ramos, deceased, is entitled to protection as he
5 suffered property damage and physical injury and subsequent death resulting from Mountain
6 Cascade's and others justifiable reliance on the representations that the Kinder Pipeline was properly
7 marked.
8 130. Mountain Cascade and its employees, including Javier Ramos, deceased, justifiably
STEINBI
AND 9 relied on said representations that the workplace was safe from extreme risk of harm. As a result,
ASSOC[
10 Javier Ramos,deceased,was injured in his person and also sustained personal property damage, and
11 subsequently died.
12 131. KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of them,
13 knew, or in the exercise of reasonable care should have known, that the conditions constituted an
14 extremely dangerous condition and unreasonable risk of serious injury or death to those who would
15 foreseeably be in the vicinity of or working on the Project,Kinder Pipeline or EBMUD Pipeline, and
16 that the danger would not be apparent to those persons, such as Javier Ramos, deceased. KMEP,
17 SFPP, KMGP,KMI, and Does 1 through 300, inclusive,and each of them,willfully and deliberately
18 failed to avoid these consequences or protect others, including Javier Ramos, deceased, from these
19 consequences. Under the circumstances of this case involving excavation next to the high-pressure
20 Kinder Pipeline,the conduct of KMEP, SFPP,KMGP,KMI,and Does 1 through 300,inclusive, and
21 each of them,constitutes malice,oppression and/or fraud.
22 132. As a direct and legal result of the alleged conduct of KMEP, SFPP,KMGP,KMI,and
23 Does 1 through 300,inclusive,and each of them,Javier Ramos,deceased,was hurt and injured in his
24 health, strength,and activity, and ultimately died. He suffered unjustifiable and substantial physical
25 pain and mental suffering before his death.
26 133. The above-alleged acts of KMEP, SFPP, KMGP, KMI, and Does 1 through 300,
27 inclusive, and each of them, were willful, wanton, malicious, oppressive, despicable, and/or
28 38
FIRST AMENDED COMPLAINT FOR DAMAGES
I fraudulent, and justify an award of punitive damages. At all times mentioned herein, KMEP, SFPP,
2 KMGP, KMI, its employees, agents, representatives, independent contractors, and Does 1 through
3 300, inclusive, and each of them were guilty of malice, oppression, fraud, and/or a willful and
4 conscious disregard for the rights of those working on the EBMUD Pipeline,including Javier Ramos,
5 deceased. Given the dangerous and ultrahazardous nature of the work performed on the Project, the
6 Kinder Pipeline, and the close proximity of the Kinder Pipeline to the EBMUD Pipeline, the false
7 representations and conduct of KMEP, SFPP, KMGP,KMI,and Does 1 through 300, inclusive, and
STEINBI 8 each of them, was despicable, malicious, fraudulent, oppressive, and made with a conscious
AND 9 disregard for the safety of,among others,Javier Ramos,deceased.
ASSOCI
10 134. Plaintiff is entitled to punitive damages against KMEP,SFPP,KMGP,KMI,and Does
11 1 through 300, inclusive, and each of them, as corporate defendants because an officer, director or
12 managing agent thereof had advance knowledge of the unfitness of its employees, agents,
13 representatives, or independent contractors (including but not limited to Mike Biggs, Mark Presley
14 and Peter Brooks) and employed or retained them with a conscious disregard of the rights or safety
15 of others, authorized or ratified the wrongful conduct of its agents, employees, representatives,
16 independent contractors and Does I through 300,inclusive,and each of them,who were acting as an
17 officer, director or managing agent of KMEP, SFPP, KMGP, KMI, and Does 1 through 300,
18 inclusive,and each of them, and which officer, director or managing agent was personally guilty of
19 oppression, fraud and/or malice. Among other things, an officer, director or managing agent of
20 KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of them, ratified the
21 conduct of its employees, agents, representatives or independent contractors by continuing to
22 employ them,failing to criticize,censure,reprimand,terminate,suspend or take other remedial action
23 against them,issuing press releases,interfering with attempts of the regulatory agencies including Cal-
24 OSHA to interview them, and providing them with legal counsel so as to defend their conduct.
25 Furthermore, a vice-president of operations and engineering of KMEP, SFPP, KMGP, KMI, and
26 Does 1 through 300, inclusive, inclusive, falsely stated in questions following the incident that "the
27 workers had been provided maps and should have been aware of the fuel pipeline's location." The
28 39
FIRST AMENDED COMPLAINT FOR DAMAGES
I press release issues by KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, inclusive,
2 dated November 10, 2004, stated that defendants "do not expect this incident will have significant
3 adverse financial impact,"nor did it appear the incident"will require major environmental clean-up."
4 135. Despite full knowledge of the consistent pattern and practice of conduct by its
5 employees, agents, representatives or independent contractors which led to regularly occurring
6 pipeline accidents, and despite full awareness of all dangers to human life and property associated
7 with pipeline incidents, KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, inclusive,
8 intentionally, deliberately and/or consciously failed to improve, update, revise, or change its
STEINBI
AND 9 ineffective safety policies and practices, training of employees, and communication within the ranks
ASSOCI
10 of the corporation, which led directly to its prior incidents and the incident involving Javier Ramos,
11 deceased.
12 136. The above-described conduct of KMEP, SFPP, KMGP, KMI, and Does 1 through
13 300,inclusive,which includes intentional and conscious disregard of safety standards and acting in a
14 manner calculated to stonewall and/or deceive regulatory authorities for their own financial benefit
15 was despicable and carried on with a willful and conscious disregard for the rights and safety of
16 others,including Javier Ramos,deceased.
17
18
19
20
21
22
23 NINTH CAUSE OF ACTION
24 WRONGFUL DEATH AND SURVIVAL ACTION
25 AGAINST EBMUD,KMEP,SFPP,KMGP,KMI,CDM,WALNUT CREEK,CONTRA
26 COSTA,COMFORCE,and DOES 1 THROUGH 300 INCLUSIVE
27 (By Maria Ramos,individually and as successor in interest to JAVIER RAMOS,deceased;By Erica
28 40
FIRST AMENDED COMPLAINT FOR DAMAGES
I Ramos,Ramona Ramos,Gricelda Ramos,Jasmin Ramos and Gerardo Ramos,minors)
2 137. Plaintiffs, and each of them, incorporate each and every allegation contained in
3 paragraphs 1 through 136 above,as though fully set forth herein.
4 138. Plaintiff Maria Ramos is the sole surviving spouse of Javier Ramos, deceased.
5 Plaintiffs Erica Ramos, Ramona Ramos, Gricelda Ramos, Jasmin Ramos, and Gerardo Ramos, by
6 and through their guardian ad litem,were the sole surviving children of Javier Ramos,deceased.
7 139. As a direct result of the carelessness,recklessness,negligence and gross negligence.of
8 EBMUD, KMEP, SFPP, KMGP, KMI, CDM, Walnut Creek, Contra Costa, Comforce, and Does 1
STEINBI
AND 9 through 300,inclusive,and each of them,Javier Ramos died on November 10,2004.
ASSOCI
10 140. Prior to the death of Javier Ramos,deceased, EBMUD, KMEP, SFPP, KMGP, KMI,
11 CDM,Walnut Creek,Contra Costa,Comforce,and Does 1 through 300,inclusive,and each of them,
12 engaged in the conduct as alleged herein above.
13 141. Prior to the death of Javier Ramos, deceased, plaintiffs, and each of them, lived with
14 Javier Ramos,deceased,and were dependent on him for their support and maintenance.
15 142. At all times prior to his death, Javier Ramos, deceased, was a faithful and dutiful
16 husband to Maria Ramos, and a dutiful father to Erica Ramos, Ramona Ramos, Gricelda Ramos,
17 Jasmin Ramos and Gerardo Ramos. Plaintiffs,and each of them,enjoyed the love,society,comfort,
18 and attention of Javier Ramos,deceased.
19 143. As a direct and proximate result of the conduct as alleged above by defendants
20 EBMUD, KMEP, SFPP, KMGP, KMI, CDM, Walnut Creek, Contra Costa, Comforce, and Does 1
21 through 300,inclusive, and each of them,which proximately and directly caused the death of Javier
22 Ramos, deceased, plaintiffs, and each of them, have sustained pecuniary loss and loss of society,
23 comfort,attention,services,love and support of Javier Ramos,deceased, in an amount according to
24 proof at trial.
25 144. As a further direct and proximate result of the conduct as alleged above by defendants
26 EBMUD, KMEP, SFPP, KMGP, KMI, CDM, Walnut Creek, Contra Costa, Comforce, and Does 1
27 through 300,inclusive, and each of them,which proximately and directly caused the death of Javier
28 41
FIRST AMENDED COMPLAINT FOR DAMAGES
I Ramos, deceased, plaintiffs, and each of them, have incurred funeral and burial expenses, in an
2 amount according to proof at trial.
3 PRAYER FOR RELIEF
4 WHEREFORE, plaintiffs Maria Ramos, individually and as successor in interest to Javier
5. Ramos, deceased•, Erica Ramos, Ramona Ramos, Gricelda Ramos, Jasmin Ramos and Gerardo
6 Ramos pray for judgment against defendants,and each of them,as follows:
7 AS TO ALL CAUSES OF ACTION:
sTr=INBi 8 1. For general damages in an amount to be proven at trial;
AND 9 2. For special damages in an amount to be proven at trial;
ASSOCI
10 3. For punitive and exemplary damages in an amount to be proven at trial and as
11 requested
12 in this Complaint;
13 4. For wrongful death and survival damages according to proof;
14 5. For costs of suit;and
15 6. For such other and further relief as the Court deems just and proper.
16
17 DATED: December 6,2005 STEINBRECHER AND ASSOCIATES
18 Mark C. Lieber
By:
19
EDWARD STEINBRECHER,ESQ.
20 MARK LIEBER,ESQ.
21 Attorneys for Plaintiffs,Maria Ramos,
Erica Ramos,Ramona Ramos,Gricelda Ramos,Jasmin
22 Ramos and Gerardo Ramos
23
24
25
26
27
28 42
FIRST AMENDED COMPLAINT FOR DAMAGES
l�
��IOCSG��
10-31-05
1 DAVID F.BEACH,ESQ.,(SBN: 127135) K:TORRE,CLERK OF THE COURT
., (SBN:76232 SUMUOR.couRTOFCAUFOWA
GARY G.DEVINE,ESQ., ) coulm OF CONTRA COSTA-MARTINEZ
2 ANNETTE HOLLAND,ESQ.,(SBN: 151707) BY: C.BRADY,DEPUTY CLERK
LAW OFFICES OF DAVID F.BEACH,P.C.
3 100 Stony Point Road,Suite 185
Santa Rosa,California 95401
4 Telephone(707)547-1690
Facsimile(707)547-1694
5
Attorneys for Plaintiffs
6 LAURA REYES,individually and as successor in
interest to MIGUEL REYES,ADRIAN REYES and
7 JAZMIN REYES,by and through their guardian ad
11 ]item,and MIGUEL REYES,JR.
8
9
SUPERIOR COURT OF CALIFORNIA,COUNTY OF CONTRA COSTA
10
11
Judicial Council Coordination Proceedings
12 GAS PIPELINE EXPLOSION No.:4433
CASES
13 (Unlimited Civil)
14 THIRD AMENDED COMPLAINT FOR
Coordinated Actions: DAMAGES
15
Knox,et al.v.MOUNTAIN CASCADE,et REYES,et al v.EAST BAY MUNICIPAL
16 al. (Contra Costa Sup.Ct.Case No.C 05- UTILITY DISTRICT,et al. (Alameda Sup.
00281);FARLEY v.MOUNTAIN Ct.Case No.RG-05-207720)
17 CASCADE,et al(Contra Costa Sup.Ct.
Case No.C 05-01573);REYES,et al v.
18 EAST BAY MUNICIPAL UTILITY
DISTRICT,et al.(Alameda Sup.Ct.Case
19 No.RG-05-207720);ARIAS,et al.V.
KINDER MORGAN,et al.(Alameda Sup.
20 Ct.Case No.RG-05-195567);ANGELES,
et al v.KINDER MORGAN,et al.
21 (Alameda Sup.Ct.Case No.RG-05-
195680)
22
23
24 PARTIES AND VENUE
25 Plaintiffs,and each of them,allege:
26 1. Plaintiff LAURA REYES is,at all times mentioned herein was,a resident of the County
27 of Sutter, State of California, and a successor in interest of MIGUEL REYES, deceased, and
28 succeeds to this cause of action because there.is no personal representative of the estate of MIGUEL
TIURD AMENDED COMPLAINT Page 1
is WN-10041
I REYES, deceased. LAURA REYES brings this complaint in her individual capacity and her
2 capacity as successor in interest as the sole surviving spouse of MIGUEL REYES,deceased. On
3 or about April 6,2005,LAURA REYES filed the declaration under penalty of perjury required by
4 Code of Civil Procedure section 377.32.
5 2. Plaintiff MIGUEL REYES,JR.is,and at all times mentioned herein was,a resident of
6 the County of Sutter,State of California,and brings this complaint in his individual capacity as the
7 adult son of MIGUEL REYES,deceased.
8 3. Plaintiff ADRIAN REYES,a minor by and through his guardian ad litem,is,and at all
9 times mentioned herein was,a resident of the County of Sutter,State of California,and brings this
10 complaint in his individual capacity as the minor son of MIGUEL REYES, deceased. Plaintiffs
11 have obtained an order from the court for the appointment of a guardian ad litem for ADRIAN
12 REYES.
13 4.Plaintiff JAZMIN REYES,a minor by and through her guardian ad litem,is, and at all
14 times mentioned herein was,a resident of the County of Sutter,State of California,and brings this
15 complaint in her individual capacity as the minor daughter of MIGUEL REYES,deceased.Plaintiffs
16 have obtained an order from the court for the appointment of a guardian ad litem for JAZMIN
17 REYES.
18 5. Defendant EAST BAY MUNICIPAL UTILITY DISTRICT(hereinafter"EBMUD")is,
19 and at all times mentioned herein was,a publicly owned utility formed under the Municipal District
20 Act passed by the California Legislature in 1921. EBMUD maintains its administrative and
21 headquarters'offices and is situated in the City of Oakland,County of Alameda,State of California.
22 EBMUD planned, designed, owned, supervised, controlled, and constructed a public works
23 construction project known as the Walnut Creek-San Ramon Valley Improvement Project
24 ("Project,")which involved the installation of a water pipeline("EBMUD Pipeline.") The route of
25 the EBMUD Pipeline was to be generally parallel to,east of,and above a high-pressure fuel pipeline
26 system located in,among other places,the City of Walnut Creek,County of Contra Costa,State of
27 California ("Kinder Pipeline.") The section of the Project and Kinder Pipeline at issue in this
28 complaint was located within downtown Walnut Creek,California in the direct vicinity of business
THIRD AMENDED COMPLAINT Page 2
I entities, a school, and residences. On or about March 2, 2005, Plaintiffs, and each of them,
2 presented their claims to EBMUD pursuant to Government Code section 910. On or about March
3 3,2005,EBMUD rejected the claims in their entirety.
4 6. Defendant MOUNTAIN CASCADE INC.(hereinafter"MOUNTAIN CASCADE')is,
5 and at all times mentioned herein was,a corporation duly organized and existing under the laws of
6 the State of California. MOUNTAIN CASCADE is a pipeline contractor and maintains its
7 headquarters'offices in the City of Livermore,County of Alameda,State of California. EBMUD
8 hired,among others, MOUNTAIN CASCADE as the general contractor on the Project, and the
9 events in issue occurred during the performance of a contract entered into in the County of Alameda,
10 State of California. MOUNTAIN CASCADE is the largest pipeline contractor in the region,and
11 prides itself that it "routinely take[s] on tough projects that our competitors shy away from an
12 turn[s]them into profit." MOUNTAIN CASCADE represents that the foundation of its success is
13 built on its dedication to"knowledge,integrity,quality and superior service."
14 7. Defendant KINDER MORGAN ENERGY PARTNERS,L.P.(hereinafter"KMEP")is,
15 and at all times mentioned herein was,a limited partnership duly organized and existing under the
16 laws of the State of Delaware,and qualified and doing business in the State of California. KMEP
17 is, and at all times relevant herein was, the designer, manufacturer, owner, operator, manager,
18 locator, field marker, monitor, and inspector of a high-pressure fuel pipeline system located in,
19 among other places,the City of Walnut Creek,County of Contra Costa,State of California("Kinder
20 Pipeline.") KMEP is the largest independent owner/operator of products pipeline in the United
21 States,transporting more than two million barrels a day of gasoline,jet fuel and diesel fuel and up
22 to 7.8 billion cubic feet a day of natural gas liquids through more than 10,000 miles of pipelines,
23 of which some 3,850 are in its Pacific pipeline system. 1t is the largest publicly traded pipeline
24 limited partnership in the United States in terms of market capitalization.
25 8. Defendant SFPP,LP(hereinafter"SFPP")is,and at all times mentioned herein was,a
26 limited partnership duly organized and existing under the laws of the State of Delaware, and
27 qualified and doing business in the State of California. SFPP is,and at all times relevant herein was,
28 the designer,manufacturer,owner,operator,manager,locator,field marker,monitor,and inspector
THIRD AMENDED COMPLAINT Page 3
I of the Kinder Pipeline. SFPP is an operating partnership and subsidiary limited partnership of
2 KMEP.
3 9. Defendant KINDER MORGAN G.P.,INC. (hereinafter"KMGP")is, and at all times
4 mentioned herein was, a corporation duly organized and existing under the laws of the State of
5 Delaware,and qualified and doing business in the State of California as,among other things, the
6 general partner of KMEP. KMGP, is, among other things, the wholly owned subsidiary of
7 Defendant KINDER MORGAN,INC. KMGP is,and at all times relevant herein was,the designer,
8 manufacturer,owner,operator,manager,locator,field marker,monitor,and inspector of the Kinder
9 Pipeline.
10 10. Defendant KINDER MORGAN, INC. (hereinafter "KMF') is, and at all times
11 mentioned herein was, a corporation duly organized and existing under the laws of the State of
12 Kansas,and qualified and doing business in the State of California. KMGP is the wholly-owned
13 subsidiary of KMI.KMI is,and at all times relevant herein was,the designer,manufacturer,owner,
14 operator,manager,locator,field marker,monitor,and inspector of the Kinder Pipeline. KMI is one
15 of the largest mid-stream energy companies in the United States,owning and/or operating more than
16 35,000 miles of natural gas and products pipeline.
17 11. CAMP DRESSER&McKEE INC.("hereinafter"CDM")is,and at all times mentioned
18 herein was,a corporation duly organized and existing under the laws of the State of Massachusetts,
19 and qualified and doing business in the State of California. CDM entered into a contract with,
20 among others,EBMUD to,among other things,provide consulting,design and related engineering
21 services for the Project. CDM then entered into a subcontract with CAROLLO ENGINEERS to,
22 among other things,provide consulting,design and related engineering services for the portion of
23 the Project at issue in this lawsuit. Plaintiffs have filed the required certificate of merit pursuant to
24 Code of Civil Procedure section 411.35.
.25 12. Defendant CAROLLO ENGINEERS.(hereinafter"CAROLLO")is, and at all times
26 mentioned herein was,a professional corporation duly organized and existing under the laws of the
27 State of Arizona,and qualified and doing business in the State of California. CAROLLO entered
28 into a subcontract agreement with CDM to, among other things,provide consulting, design and
THIRD AMENDED COMPLAINT Page 4
I related engineering services for the Project,the portion of which is at issue in this lawsuit. Plaintiffs
2 have fled the required certificate of merit pursuant to Code of.Civil Procedure section 411.35.
3 13. Defendant COMFORCE TECHNICAL SERVICES,INC.(hereinafter"COMFORCE")
4 is,and at all times mentioned herein was,a corporation duly organized and existing under the laws
5 of the State of Delaware,and qualified and doing business in the State of California. COMFORCE
6 is a provider of contingent staffing, information technology, consulting and human resource
7 outsourcing solutions,including. COMFORCE provided temporary staffing of pipeline construction
8 inspectors to and was hired by,among others,KMEP,SFPP,KMGP,and KMI,with respect to the
9 Project and Kinder Pipeline.
10 14. DOES 1-50,inclusive,and each of them,are,and at all times mentioned herein were,
I1 individuals and/or business organizations form unknown that were engaged in the business of
12 planning,designing,owning,supervising,controlling and constructing the Project.
13 15. DOES 51-100,inclusive,and each of them,are,and at all times mentioned herein were,
14 individuals and/or business organizations form unknown were engaged in the construction,
15 supervision,operation,and control of the Project as contractors or subcontractors hired by EBMUD,
16 and DOES 1-50,and each of them,and/or MOUNTAIN CASCADE.
17 16. DOES 101-150,inclusive, and each of them, are, and at all times mentioned herein
18 were,individuals and/or business organizations form unknown that designed,manufactured,sold,
19 owned,controlled,operated,maintained,inspected,distributed,transported,located,field marked,
20 monitored,and managed the Kinder Pipeline and/or contents therein.
21 17. DOES 151-200,inclusive, and each of them,are, and at all times mentioned herein
22 were, individuals and/or business organizations form unknown that were the owner(s) and/or
23 bailee(s)of the backhoe vehicle which struck the Kinder Pipeline.
24 18. DOES 201-250,inclusive, and each of them, are, and at all times mentioned herein
25 were, individuals and/or business organizations form unknown that drove and/or operated the
26 backhoe vehicle which struck the Kinder Pipeline.
27 19. DOES 251-300,inclusive, and each of them, are, and at all times mentioned herein
28 were,individuals and/or business organizations form unknown that owned or controlled the real
THIRD AMENDED COMPLAINT Page 5
I property where the Project,EBMUD Pipeline,and Kinder Pipeline was located.
2 20. Plaintiffs,and all of them,are ignorant of the true names and/or capacities of defendants
3 sued herein as DOES 1-300,inclusive,and therefore sue these defendants by such fictitious names.
4 Plaintiffs will amend this complaint to allege their true names and capacities when ascertained.
5 Plaintiffs are informed and believe, and on that basis allege,that each of said fictitiously named
6 defendants is responsible in some manner for the occurrences herein alleged,and that the injuries
7 herein alleged were proximately caused by said their conduct.
.8 21. Plaintiffs are informed and believe and on that basis allege that at all times mentioned
9 herein,each of the defendants was the agent and employee of each of the remaining defendants,and
10 in doing the things alleged in this complaint,was acting within the course and scope of this agency
11 and employment,with the knowledge,approval,consent and ratification of each of the remaining
12 defendants.
13 22. Plaintiffs are informed and believe,and thereon allege,that at all.times relevant,there
14 exists,and has existed,a unity of interest and ownership between KMEP,SFPP,KMGP and KMI,
15 and DOES 101-150, and each of them, such that any individuality and separateness between the
16 entities has ceased to exist. Upon information and belief,KMEP is the alter ego of KMGP,SFPP,
17 KMI,and DOES 101-150,and each of them. Upon information and belief,SFPP is the alter ego
18 of KMEP, KMGP, KMI, and DOES 101-150, and each of them. Upon information and belief,
19 KMGP is the alter ego of KMI,and DOES 101-150. Among other things,(a)KMEP was and is
20 completely controlled,dominated,managed and operated by KMGP and KMI,and DOES 101-150,
21 and each of them,(b)SFPP was and is completely controlled,dominated,managed and operated
22 by KMEP,KMGP,KMI and DOES 101-150,and each of them,(c)KMGP was and is completely
23 controlled,dominated,managed and operated by KMI,and DOES 101-150,and each of them,(d)
24 KMEP, SFPP, KMGP,KMI and DOES 101-150, and each of them, have permitted assets to be
25 transferred between themselves without adequate consideration,(e)KMEP,SFPP,KMGP,KMI and
26 DOES 101-150,and each of them,have disguised corporate profits in order to evade liability and
27 the payment of judgments,and(f)KMEP,SFPP,KMGP,KMI,and DOES 101-150,and each of
28 them, was and is inadequately capitalized. Adherence to the fiction of the separate existence of
THIRD AMENDED COMPLAINT Page 6
1 KMEP,SFPP, KMGP,KMI and DOES 101-150,and each of them,would permit an abuse of the
2 corporate privilege and would sanction fraud or promote injustice because the entities,and each of
3 them,used in bad faith for the purpose of evading liability and as a means of allowing the other
4 entities, and each of them,to profit from their control and manipulation free from the claims of
5 Plaintiffs.
6 23. Venue is proper in the Superior Court of the State of California,County of Contra Costa.
7 GENERAL ALLEGATIONS
8 24. Plaintiffs, and each of them, incorporate each and every allegation contained in
9 paragraphs 1 through 23 above,as though fully set forth herein.
10 25. EBMUD,and DOES 1-50,and each of them,planned,designed,owned, supervised,
11 controlled, and constructed the Project, which involved the installation of the EBMUD Pipeline.
12 EBMUD began the design of the Project in 2000. EBMUD entered into a contract with CDM for
13 CDM to,among other things,provide consulting,design and related engineering services for the
14 Project. CDM later entered into a subcontract with CAROLLO,whereby CAROLLO would,among
15 other things, provide consulting, design and related engineering services for the portion of the
16 Project which is at issue in the present lawsuit.
17 26. EBMUD's general contract was initially awarded on or about October of 2002 to
18 Modern Continental Construction Co. In late 2002,the full Kinder Pipeline was marked by a line
19 rider employed by KMEP, SFPP,KMGP, KML COMFORCE, and DOES 101-150, and each of
20 them. The individual was supposed to be using conductive locating equipment. The individual
21 marked the Kinder Pipeline by placing paint marks and flags along the Kinder Pipeline,but failed
22 to indicate a bend in the line at station 100+15 where an oak tree once stood.
23 27. Prior to beginning field work on the Project, a field meeting was held on or about
24 February 3,2003 between,among others,Modern Continental Co.,EBMUD,KMEP,SFPP,KMI,
25 KMGP,COMFORCE,and DOES 1-150,and each of them. At the conclusion of the field meeting,
26 representatives of EBMUD,KMEP,SFPP,KMGP,KMI,COMFORCE,and DOES 1-150,and each
27 of them,walked the South Broadway portion of the Kinder Pipeline. No fresh field markings were
28 observed and no offsets were marked or pointed out by EBMUD, KMEP, SFPP, KMGP, KMI,
THIRD AMENDED COMPLAINT Page 7
I COMFORCE,and DOES 1-150,and each of them,around station 100+15. As of March of 2003,
2 no field markings were visible.
3 28. In addition,in or about 2003 or 2004,Modem Continental Co.was excavating for the
4 EBMUD Pipeline and Project, and determined that a segment of the Kinder Pipeline was
5 approximately 13 feet from where it had been field marked by KMEP, SFPP, KMGP, KMI,
6 COMFORCE, and DOES 101-150, and each of them. Modern Continental Co. expressed this
7 concern to,among others,EBMUD,KMEP,SFPP,KMGP,KMI,and DOES 1-50,and 101-150,
8 and each of them. In addition, in or about August of 2003,EBMUD requested KMEP, SFPP,
9 KMGP, KMI,and DOES 101-150,and each of them,to relocate a section of the Kinder Pipeline
10 because it was,among other things,hard to locate and a hindrance to completion of the Project. In
11 or about early 2004, Modern Continental, EBMUD, and DOES 1-50, and each of them, were
12 extremely concerned about the location of the Kinder Pipeline because it was still in the way of the
13 excavation for the EBMUD Pipeline and Project. Among others, Modern Continental Co.,
14 EBMUD,KMEP,SFPP,KMGP,KMI,and DOES 1-50,and 101-150,and each of them,discussed
15 in early 2003 the location of the Kinder Pipeline and how to continue working on the Project despite
16 the location of the Kinder Pipeline.
17 29. On or about May 28, 2004, EBMUD issued a "Notice of Default Termination' to
18 Modern Continental Construction Co.
19 30. After EBMUD terminated its general contract with Modem Continental Construction
20 Co.,EBMUD,and DOES 1-50,and each of them,contracted in August of 2004 with,among others,
21 MOUNTAIN CASCADE and DOES 51-100, and each of them,to complete construction of the
22 Project. In compliance with the provisions of the Subletting and Subcontracting Fair Practices Act
23 of the Public Contract Code of the State of California,MOUNTAIN CASCADE and DOES 51-100,
24 and each of them,thereafter subcontracted with,listed and employed,among others,Matamoros
25 Pipeline,Inc.to,among other things,weld together segments of the EBMUD Pipeline. Matamoros
26 Pipeline,Inc.employed MIGUEL REYES,deceased,as a welder.
27 31. Prior to starting excavation, the EBMUD contract required a field meeting between
28 EBMUD and MOUNTAIN CASCADE. The meeting occurred on September 28,2004 and was
THIRD AMENDED COMPLAINT Page 8
I attended by representatives of EBMUD,MOUNTAIN CASCADE,KMEP,SFPP,KMGP,KMI,
2 COMFORCE,and DOES 1-150, and each of them. At that meeting,the line rider employed by
3 KMEP,SFPP,KMGP, KMI,COMFORCE,and DOES 1-150,and each of them,represented that
4 the line markers were directly over the Kinder Pipeline and that the Kinder Pipeline ran straight
5 between the line markers. The attendees of the meeting walked the entire length of the Kinder
6 Pipeline using a 100-foot tape to show the location of the proposed EBMUD Pipeline and determine
7 if there would be any interference with the Kinder Pipeline. Fieldwork commenced in late
8 September,2004.
9 32. In or about October of 2004, benching for the trenching excavator in the area of the
10 offset took place. MOUNTAIN CASCADE,and DOES 1-150,and each of them,benched over the
11 offset at station 100+15. As of November 3 and 4, 2004,there were no markings indicating the
12 offset.
13 33. On or about November 8, 2004, a site meeting occurred which was required by.
14. MOUNTAIN CASCADE three days earlier, and attended by, among others, MOUNTAIN
15 CASCADE,KMEP,SFPP,KMGP,KMI,COMFORCE,EBMUD,and DOES 1-150,and each of
16 them. One of the purposes of the meeting was to provide assurance that MOUNTAIN CASCADE
17 was excavating properly;MOUNTAIN CASCADE did not specifically inquire about the offset at
18 station 100+15,and neither KMEP,SFPP,KMGP,KMI,COMFORCE,EBMUD,and DOES 1-150,
19 and each of them,represented anything about the offset.
20 34. On or about November 9,2004,MIGUEL REYES,deceased,was working within the
21 course and scope of his employment at the Project,welding inside the EBMUD Pipeline,which lay
22 in a trench being excavated for the EBMUD Pipeline and following South Broadway between
23 Newell Avenue and Rudgear Road in the City of Walnut Creek,County of Contra Costa,State of
24 California.
25 35. Near to where MIGUEL REYES,deceased,was working, a backhoe operator(Greg
26 Berry) under the direct supervision and control of EBMUD, MOUNTAIN CASCADE, KMEP,
27 SFPP,KMGP,KMI and DOES 1-250,and each of them,excavated the trench in which the EBMUD
28 1 Pipeline was being installed.
THIRD AMENDED COMPLAINT Page 9
i
1 36. The Kinder Pipeline lay immediately adjacent to the EBMUD Pipeline trench. In fact,
2 there was a bend in the Kinder Pipeline at station 100+15,where the Kinder Pipeline veered around
3 the roots of an oak tree that once stood at that location.
4 37. As a result of the conduct of defendants, and each of them, herein, on or about
5 November 9,2004,a backhoe operator(Greg Berry)as an employee of MOUNTAIN CASCADE
6 and/or DOES 51-100,151-250,and each of them,so operated the backhoe as to penetrate the Kinder
7 Pipeline, causing the flammable material within to escape. Plaintiffs, and each of them, are
8 informed and believe,and thereon allege,that the flammable material and byproducts thereof from
9 the explosion entered the EBMUD Pipeline in which MIGUEL REYES,deceased,was working,
10 resulting in personal injuries to MIGUEL REYES,deceased,and resulting in his death,in a manner
11 presently unknown to Plaintiffs,and each.of them. Before his death,MIGUEL REYES,deceased,
12 suffered,among other things, damage to his personal property,personal injury, and unjustifiable
13 and substantial physical pain and mental suffering. MIGUEL REYES, deceased, was not killed
i14 instantly but suffered a horrendous death trapped in the EBMUD Pipeline after the Kinder Pipeline
15 was ruptured.
16 38. Prior to November 9,2004,KMEP,SFPP,KMGP,KMI and DOES 101-150,and each
17 of them,experienced numerous incidents involving its pipelines,which resulted in,among other
18 things,personal injury or property damage. KMEP,SFPP,KMGP,KMI and DOES 101-150,and
19 each of them,own a 45%interest in the Cochin Pipeline System,a 1900-mile natural gas liquids
20 pipeline operating between Alberta and Ontario Canada, traversing through seven states in the
21 United States. On or about July 16,2003,the United States portions of the Cochin Pipeline System
22 . experienced a rupture and fire at a rural location about 75 miles from Fargo,North Dakota.
23 39. Approximately two weeks later on or about July 30,2003,a pipeline owned/operated
24 by KMEP,SFPP,KMGP,and KMI,and DOES 101-150,and each of them,broke in a subdivision
25 in Tucson,Arizona,spraying gasoline more than fifty feet into the air,saturating five homes,and
26 contaminating soil and groundwater.
27 40. On or about April 29,2004,a pipeline ownedloperating by KMEP,SFPP,KMGP,KMI
28 and DOES 101-150,and each of them,which transported gasoline,jet fuel and diesel to Chico and
THIRD AMENDED COMPLAINT Page 10
I Sacramento, California and Reno, Nevada experienced a rupture not discovered until April 30,
2 2004. As a result,approximately 1,000 barrels or 42,000 gallons of fuel spilled into about 250 acres
3 of Suisin Marsh,a wetland in Northern California. Criticized for the delayed response,a managing
4 agent of KMEP,SFPP,KMGP,KMI,and DOES 101-150,and each of them,replied"You can't cry
5 wolf every time you see an anomaly."
6 41. On or about November 22,2004,a pipeline owned/operated by KMEP,SFPP,KMGP,
7 KMI, and DOES 101-150, and each of them, transporting gasoline from Colton to Barstow,
8 California into Las Vegas,Nevada experienced a rupture in a rural area near Baker, California. .
9 California Highway Patrol officers on nearby Interstate 15 noticed a strong odor and closed the
10 freeway,which led to the discovery of a fifty to sixty foot gasoline vapor geyser. The spokesman
11 for KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,(Larry Pierce)stated"it's
12 not a significant financial impact to the company at all. It's more of an operational issue."
13 42. In the six years prior to November 9,2004,MOUNTAIN CASCADE,and DOES 51-
14 100,and each of them,accumulated several safety violations,and was issued several citations from
15 California OSHA for workplace accidents,including but not limited to,the death a worker when
16 a pipe fell on him,the death of a worker when a crane he tried to operate without training collapsed
17 and smashed him against a pipe, severe Iung damage suffered by three workers when poisonous
18 gases overcame them in a sewer in which they were working,and the personal injury of a worker
19 when his leg was crushed between two water trucks. MOUNTAIN CASCADE,and DOES 51-100,
20 were also the subject of several civil lawsuits involving wrongful death, as well as criminal
21 prosecutions.
22 43. On or about May 5, 2005,California OSHA issued two Serious Willful Citations to
23 KMEP for violation of California Code of Regulations("CCR")sections 1541(b)(1)and 1511(b)
24 totaling$140,000;the evidence showed that KMEP committed an intentional and knowing violation
25 and KMEP was conscious of the fact that what it was doing constituted a violation,or was aware
26 that a hazardous condition existed and made no reasonable effort to eliminate the hazard. OSHA
27 also issued one Serious Citation to CAROLLO for violation of CCR section 1511(b) totaling
28 $22,500, one Serious Citation to MOUNTAIN CASCADE for violation of CCR section 1511(b)
THIRD AMENDED COMPLAINT Page 11
I totaling $22,500, and one Serious Citation to EBMUD for violation of CCR section 1511(b)
2 totaling $6,750; OSHA determined with respect to CAROLLO,MOUNTAIN CASCADE, and
3 EBMUD,there was a substantial probability that death or serious physical harm could result from
4 the condition which existed or from the practices,operations or processes at the workplace.
5 FIRST CAUSE OF ACTION
6 NEGLIGENCE
7 AS AGAINST EBMUD AND DOES 1-50,INCLUSIVE
8 (By LAURA REYES,successor in interest to MIGUEL REYES,deceased)
9 44. Plaintiffs incorporate each and every allegation contained in paragraphs 1 through 43
10 above,as though fully set forth herein.
11 45. At all times relevant herein,EBMUD,and DOES 1-50,inclusive,and each of them,was
12 engaged in the business of planning,designing,owning,supervising,controlling and constructing
13 the Project. EBMUD had an employee(s) or representative(s) at the Project site to exercise
14 exclusive control and supervision of the Project,providing surveying control and quality assurance.
15 46. Because of the dangerous and ultrahazardous nature of the Project,the Kinder Pipeline
16 and contents thereof,and the location of the Kinder Pipeline in the vicinity of the EBMUD Pipeline
17 and the Project, EBMUD and DOES 1-50,inclusive,and each of them,had a nondelegable duty
18 under, among other things,OSHA regulations and California statutes and common law, to plan,
19 design, own, supervise,control, survey, and construct the Project in a safe manner to ensure the
20 safety of the public and those working on the Project,including MIGUEL REYES,deceased.
21 47. At all relevant times herein,EBMUD and DOES 1-50, inclusive, and each of them,
.22 breached said nondelegable duty by,among other things:
23 ♦ negligently and carelessly and recklessly hiring MOUNTAIN CASCADE and others
24 including KMEP,SFPP,KMGP,KMI,COMFORCE and DOES 51-150 and 201-
25 250, and each of them, to perform the work on the Project, given, among other
26 things,their poor safety records;
27 ♦ negligently and carelessly and recklessly supervising and exercising retained control
28 over MOUNTAIN CASCADE and others including KMEP,SFPP, KMGP, KMI,
THIRD AMENDED COMPLAINT Page 12
I COMFORCE, CAROLLO, CDM, and DOES 51-150 and 201-250, and each of
2 them,in the performance of their work on the Project;
3 ♦ negligently and carelessly and recklessly failing to correctly determine the location
4 of the Kinder Pipeline before allowing MOUNTAIN CASCADE and DOES 51-100
5 and 201-250,and each of them,to excavate in the area of the EBMUD Pipeline and
6 Kinder Pipeline. EBMUD was aware of the incursion of the Kinder Pipeline into the
7 Project as evidenced by the maps created by CAROLLO and CDM,and reviewed
8 by EBMUD. EBMUD reviewed the pot-holing data derived from the field and
9 failed to address the missing data in the vicinity of the offset and failed to request
10 additional data.
11 ♦ negligently and carelessly and recklessly pressuring and requiring MOUNTAIN
12 CASCADE and DOES 51-100 and 201-250, and each of them, to complete their
13 work on the Project in a time frame that was not feasible without endangering the
14 safety of the public and those working on the Project,including MIGUEL REYES,
15 deceased;
16 ♦ negligently and carelessly and recklessly failing to create,obtain and/or analyze the
17 proper design maps and field marking data, prior to allowing MOUNTAIN
18 CASCADE and DOES 51-100 and 201-250,and each of them,to excavate near the
19 EBMUD Pipeline and Kinder Pipeline;
20 ♦ negligently and carelessly and recklessly failing to obtain the proper permits and
21 other authority to allow for work to be completed by MOUNTAIN CASCADE and
22 DOES 51-150 and 201-250,and each of them,in the vicinity of the Kinder Pipeline
23 and EBMUD Pipeline;
24 ♦ negligently and carelessly and recklessly creating a dangerous condition of public
25 property by performing work,or allowing work to be performed on its behalf,on the
26 Project in the immediate vicinity of the Kinder Pipeline as opposed to another
27 location in the City of Walnut Creek, County of Contra Costa where the Kinder
28 Pipeline was not located;
THIRD AMENDED COMPLAINT Page 13
I ♦ negligently and carelessly and recklessly failing to require KMEP,SFPP, KMGP,
2 KMI, and DOES 101-150, and each of them, to relocate the Kinder Pipeline to a
3 location away from the immediate vicinity of the EBMUD Pipeline and Project;
4 ♦ negligently and carelessly and recklessly failing to notify MOUNTAIN CASCADE
5 and DOES 51-100,and each of them,of concerns by other entities working on the
6 Project or who worked on the project(including among others Modern Continental
7 Construction Co.,KMEP,SFPP,KMGP,KMI, and DOES 51-150) regarding the
8 location of the Kinder Pipeline to the vicinity of the EBMUD Pipeline and Project;
9 ♦ negligently and carelessly and recklessly failing to proceed, or requiring
10 MOUNTAIN CASCADE,KMEP,SFPP,KMGP,KMI and DOES 51-150 and 201-
11 250, and each of them,to proceed with the work around the Kinder Pipeline and
12 EBMUD Pipeline through safe and acceptable means;
13 ♦ negligently and carelessly and recklessly failing to conduct, or requiring
14 MOUNTAIN CASCADE,KMEP,SFPP,KMGP,KMI and DOES 5I-150,and each
15 of them, to conduct, daily inspections by a competent individual prior to the start
16 of work and as needed throughout the shift for evidence of a situation that could
17 result in dangerous and ultrahazardous condition,such as that which resulted in the
18 death of MIGUEL REYES,deceased;and
19 ♦ negligently and carelessly and recklessly failing to remove, or requiring
20 MOUNTAIN CASCADE,KMEP,SFPP,KMGP,KMI and DOES 51-150,and each
21 of them,to remove,individuals working on the Project,including MIGUEL REYES,
22 deceased,from the dangerous and ultrahazardous area until necessary precautions
23 had been taken to ensure the safety of those individuals, including MIGUEL
24 REYES,deceased..
25 48. EBMUD,and DOES 1-50,inclusive,and each of them,acted negligently,carelessly,
26 and recklessly so as to cause the personal injury and ultimate death of MIGUEL REYES,deceased,
27 and to legally cause the injuries and damages described below.
28 111
THIRD AMENDED COMPLAINT Page 14
1 49. EBMUD, and DOES 1-50, inclusive, and each of them, knew, or in the exercise of
2 reasonable care should have known,that the conditions constituted a extremely dangerous condition
3 and unreasonable risk of serious injury or death to those who would foreseeably be in the vicinity
4 of the Project or working on the Project,and that the danger would not be apparent to persons such
5 as MIGUEL REYES,deceased. There was a substantial probability that death or serious physical
6 harm could result from the conditions. Under the circumstances of this case involving excavation
7 next to the high-pressure Kinder Pipeline,the conduct of EBMUD,and DOES 1-50,inclusive,and
. 8 each of them,was an extreme departure from the ordinary standard of conduct and constitutes gross
9 negligence.
10 50. As a direct and legal result of the negligence and/or gross negligence of EBMUD,and
11 DOES 1-50,inclusive,and each of them,MIGUEL REYES,deceased,was hurt and injured in his
12 health,strength,and activity,and ultimately died.He suffered unjustifiable and substantial physical
13 pain and mental suffering before his death.
14 51. As a further direct and legal result of the negligence and/or gross negligence of
15 EBMUD,and DOES 1-50,inclusive,and each of them,MIGUEL REYES incurred damage to his
16 personal property prior to his death in an amount according to proof at trial.
17 WHEREFORE,Plaintiff LAURA REYES, as successor in interest to MIGUEL REYES,
18 deceased, prays judgment against EBMUD, and DOES 1-50, inclusive, and each of them, as
19 hereinafter set forth.
. 20 SECOND CAUSE OF ACTION
21 NEGLIGENCE
22 AS AGAINST MOUNTAIN CASCADE AND DOES 51-100 and 151-250,INCLUSIVE
23 (By Plaintiff LAURA REYES,successor in interest to MIGUEL REYES)
24 52. Plaintiffs, and each of them, incorporate each and every allegation contained in
25 paragraphs 1 through 51 above,as though fully set forth herein.
26 53. At all times relevant herein,MOUNTAIN CASCADE,and DOES 51-100 and 151-250,
27 inclusive,and each of them,was the general contractor or subcontractor hired by EBMUD for the
28 Project and was engaged in the construction,supervision,operation,and control of the Project.
THIRD AMENDED COMPLAINT Page 15
1 54. Because of the dangerous and ultrahazardous nature of the Project and Kinder Pipeline,
2 and the location of the Kinder Pipeline in the vicinity of the.EBMUD Pipeline, MOUNTAIN
3 CASCADE and DOES 51-100,and 151-250,inclusive,and each of them,had a nondelegable duty
4 under, among other things, OSHA regulations and California statutes and common law, to
5 supervise,control,operate,survey,and construct the Project in a safe manner to ensure the safety
6 of the public and those working on the Project,including MIGUEL REYES,deceased.
7 55.At all relevant times herein,MOUNTAIN CASCADE and DOES 51-100,and 151-250,
8 inclusive,and each of them,breached said nondelegable duty by,among other things:
9 ♦ improperly hiring,training,retaining,and supervising its employees,representatives,
10 agents and independent contractors in the performance of the work on the Project;
11 ♦ improperly failing to correctly determine the location of the Kinder Pipeline before
12. excavating in the area,or allowing its employees,agents,or representatives and/or
13 DOES 51-100 and 252-250 to excavate in the area,of the EBMUD Pipeline and
14 Kinder Pipeline,pursuant to,among other things,Government Code section 4216.4.
15 MOUNTAIN CASCADE was aware of the incursion of the Kinder Pipeline into the
16 Project, by way of, among other things, the drawings and plans provided to
17 MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,by EBMUD
1.8 and others;
19 ♦ impi operly attempting,through pressure by and requirements of EBMUD and DOES
20 1-50,and each of them,to complete the work on the Project in a time frame that was
21 not feasible without endangering the safety of the public and those working on the
22 Project,including MIGUEL REYES,deceased;
23 ♦ improperly failing to create,obtain and/or analyze the proper utility maps showing
24 the location of the Kinder Pipeline,prior to excavating,or allowing DOES 51-100,
25 and 151-250,and each of them,to excavate,near the EBMUD Pipeline and Kinder
26 Pipeline;
27 ♦ improperly failing to obtain the proper permits and other authority to allow for work
28 to be completed in the vicinity of the Kinder Pipeline and EBMUD Pipeline;
THIRD AMENDED COMPLAINT Page 16
1 ♦ improperly failing to require KMEP,SFPP,KMGP and KMI,and DOES 101-150,
2 and each of them, to relocate the Kinder Pipeline to a location away from the
3 immediate vicinity of the Project;
4 ♦ improperly failing to inquire as to concerns of other entities working on the Project
5 or who worked on the project (including among others Modem .Continental
6 Construction Co.,EBMUD,KMEP,SFPP,KMGP,KMI and DOES 1-50 and 101-
7 150,and each of them)regarding the location of the Kinder Pipeline to the vicinity
8 of the Project and EBMUD Pipeline;
9 ♦ improperly failing to proceed with the work around the Kinder Pipeline and
10 EBMUD Pipeline through safe and acceptable means, pursuant to, among other
11 things,Government Code section 4216.4;
12 ♦ improperly entering into a mutual agreement with KMEP,SFPP,KMGP,and KMI
13 and DOES 101-150, and each of them, allowing for the use of power-operated or
14 power-driven excavating or boring equipment within the vicinity of the Kinder
15 Pipeline and EBMUD Pipeline;
16 ♦ improperly failing to enter into a mutual agreement with KMEP,SFPP,KMGP,and
17 KMI and DOES 101-150,and each of them,allowing for the use of power-operated
.18 or power-driven excavating or boring equipment within the vicinity of the Kinder
19 Pipeline and EBMUD Pipeline;
20 ♦ improperly failing to conduct daily inspections,or requiring others to conduct,by a
21 competent individual prior to the start of work and as needed throughout the shift for
22 evidence of a situation that could result in a dangerous and ultrahazardous condition,
23 such as the condition resulting in the death of MIGUEL REYES,deceased;
24 ♦ improperly failing to remove,or requiring others to remove, individuals working on
25 the Project, including MIGUEL REM, deceased, from the dangerous and
26 ultrahazardous area until necessary precautions had been taken to ensure the safety
27 of those individuals,including MIGUEL REYES;
28
THIRD AMENDED COMPLAINT Page 17
I ♦ improperly failing to timely contact Underground Service Alert prior to excavating,
2 or allowing excavation,near the Kinder Pipeline and EBMUD Pipeline,pursuant to,
3 among other things,Government Code section 4216.2;
4 ♦ improperly failing to timely notify Underground Service Alert when the field
5 markings,if any,for the Kinder Pipeline were no longer reasonably visible;
6 ♦ improperly failing to notify Underground Service Alert of KMEP, SFPP,KM GP,
7 and KMI's,and DOES 101-150,and each of them,failure to locate and field mark
8 the Kinder Pipeline prior to excavation;
9 ♦ improperly failing to obtain an inquiry identification number from Underground
10 Service Alert prior to commencing or allowing excavation near the Kinder Pipeline
11 and EBMUD Pipeline pursuant to,among other things,Government Code section
12 4216.2;and
13 ♦ improperly failing to obtain a revalidation of the inquiry identification number from
14 Underground Service Alert after said number expired pursuant to, among other
15 things,Government Code section 4216.2.
16 56. The tortious conduct alleged above by MOUNTAIN CASCADE,and DOES 51-100,
17 and 151-250,inclusive and each of them,was,among other things,negligent,careless,reckless,and
18 grossly negligent. Among other things,MOUNTAIN CASCADE,and DOES 51-150,and 151-250,
19 inclusive,and each of them,was aware of the probable dangerous consequences of its conduct and
.201 failed to avoid those consequences,which resulted in thepersonal injuries and property damage,and
21 subsequent death of MIGUELREYES,deceased.
22 57. MOUNTAIN CASCADE,and DOES 51-150,and 151-250,inclusive,and each of them,
23 acted so as to cause the personal injury and ultimate death of MIGUEL REYES,deceased,and to
24 legally cause the injuries and damages described below.
25 58. MOUNTAIN CASCADE, and DOES 51-150, and 151-250, inclusive, and each of
26 them,knew,or in the exercise of reasonable care should have known,that the conditions constituted
27 a extremely dangerous condition and unreasonable risk of serious injury or death to those who
28 would foreseeably be in the vicinity of the Project or working on the Project,and that the danger
THIRD AMENDED COMPLAINT Page 18
I would not be apparent to persons such as MIGUEL REYES,deceased. MOUNTAIN CASCADE,
2 and DOES 51-100,and 151-250,inclusive,and each of them,failed to avoid these consequences
3 or protect others, including MIGUEL REYES, deceased, from these consequences. Under the
4 circumstances of this case involving excavation next to the high-pressure Kinder Pipeline, the
5 conduct of MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,and each of them,
6 was an extreme departure from the ordinary standard of conduct.
7 59. As a direct and legal result of the conduct of MOUNTAIN CASCADE,and DOES 51-
8 100,and 151-250,inclusive,and each of them,MIGUEL REYES,deceased,was hurt and injured
9 in his health,strength,and activity,and ultimately died.He suffered unjustifiable and substantial
10 physical pain and mental suffering before his death.
11 60. As a further direct and legal result of the conduct of MOUNTAIN CASCADE, and
12 DOES 51-100,and 151-250,inclusive,and each of them,MIGUEL REYES,deceased, incurred
13 damage to his personal property,prior to his death,in an amount according to proof at trial.
14 WHEREFORE,Plaintiff LAURA REYES,as successor in interest to MIGUEL REYES,
15 deceased, prays judgment against MOUNTAIN CASCADE, and DOES 51-100, and 151-250,
16 inclusive,and each of them,as hereinafter set forth.
17 THIRD CAUSE OF ACTION
18 NEGLIGENCE
19 AS AGAINST KMEP,SFPP,KMGP,KMI AND DOES 101-150,INCLUSIVE
20 (By LAURA REYES,Successor in Interest to MIGUEL REYES)
21 61. Plaintiffs, and each of them, incorporate each and every allegation contained in
22 paragraphs 1 through 60 above,as though fully set forth herein.
23 62. At all times relevant herein,KMEP,as a limited partnership,SFPP,a limited partnership
24 and operating partnership of KMEP,KMGP as the general partner of KMEP,and KMI as the parent
25 corporation and owner of KMGP,and DOES 101-150,inclusive,and each of them,were the owners
26 and operators of the Kinder Pipeline.
27 63. Because of the dangerous and ultrahazardous nature of the Project and the Kinder
28 Pipeline,and the location of the Kinder Pipeline in the vicinity of the EBMUD Pipeline,KMEP,
THIRD AMENDED COMPLAINT Page 19
I SFPP,KMGP and KMI,and DOES 101-150,inclusive,and each of them,had a nondelegable duty
2 under, among other things, OSHA regulations and California statutes and common law,.to own,
3 supervise,control,survey,and operate the Kinder Pipeline in a safe manner to ensure the safety of
4 the public and those working on the Project,including MIGUEL REYES,deceased.
5 64. At all relevant times herein, KMEP, SFPP, KMGP, and KMI, and DOES 101-150,
6 inclusive,and each of them,breached said nondelegable duty by,among other things:
7 ♦ improperly hiring, training, retaining, and supervising its employees, agents,
8 representatives, and independent contractors, including COMFORCE, in the
9 performance of the work on the Kinder Pipeline in relation to the Project,including
10 but not limited to the determination of the location of the Kinder Pipeline before
1 l allowing EBMUD,MOUNTAIN CASCADE, and DOES 1-100 and 201-250, and
12 each of them,to excavate and work in the area of the EBMUD Pipeline and Kinder
13 Pipeline;
14 ♦ improperly failing to create,obtain and/or analyze the proper utility maps,plans and
15 drawings showing the location of the Kinder Pipeline,prior to allowing EBMUD,
16 MOUNTAIN CASCADE, and DOES 1-100 and 201-250, and each of them, to
17 excavate and work in the area of the EBMUD Pipeline and Kinder Pipeline;
18 ♦ improperly failing to obtain the proper permits and other authority to allow for work
19 to be completed in the vicinity of the Kinder Pipeline and EBMUD Pipeline;
20 ♦ improperly failing to locate and field mark the location of the Kinder Pipeline prior
21 to the excavation by EBMUD,MOUNTAIN CASCADE and DOES 1-100 and 201-
22 250,inclusive,and each of them,in violation of,among other things,Government
23 Code section 4216.3;
24 ♦ improperly failing to relocate the Kinder Pipeline to a location away from the
25 immediate vicinity of the Project and EBMUD Pipeline;
26 ♦ improperly failing to address the concerns of entities working on the Project or who
27 worked on the project(including among others Modern Continental Construction
28 Co., EBMUD, and DOES 1-50, and each of them) regarding the location of the
THIRD AMENDED COMPLAINT Page 20
I Kinder Pipeline to the vicinity of the EBMUD Pipeline, and failing to inform
2 MOUNTAIN CASCADE and DOES 51-100 and 201-250, and each of them, of
3 these concerns;
4 ♦ improperly entering into a mutual agreement with. MOUNTAIN CASCADE,
5 EBMUD and DOES 1-100 and 201-250, and each of them, allowing the use of
6 power-operated or power-driven excavating or boring equipment within the vicinity
7 of the Kinder Pipeline and Project;and
8 ♦ improperly failing to inspect, or failing to inspect as frequently as necessary, the
9 Kinder Pipeline during work on the Project where,through contact with EBMUD
10 and others(including Modern Continental Construction,EBMUD,and DOES 1-100,
11 and each of them,)KMEP,SFPP,KMGP and KMI,and DOES 101-150,and each
12 of them,knew or should have known,that the Kinder Pipeline could be damaged by
13 excavation work for the Project.
14 65. The tortious conduct alleged above by KMEP,SFPP,KMGP,KMI,and DOES 101-150,
15 inclusive and each of them, was, among other things, negligent, careless, reckless, and grossly
16 negligent. Among other things,KMEP,SFPP,KMGP,KMI,and DOES 101-150,inclusive,and
17 each of them,was aware.of the probable dangerous consequences of its conduct and failed to avoid
18 those consequences,which resulted in the personal injuries and property damage,and subsequent
19 death of MIGUEL REYES,deceased.
20 66. KMEP,SFPP,KMGP,and KMI,and DOES 101-150,inclusive,and each of them,acted
21 so as to cause the personal injury and property damage,and ultimate death of MIGUEL REYES,
22 deceased,and to legally cause the injuries and damages described below.
23 67. KMEP, SFPP, KMGP, and KMI, and DOES 101-150, inclusive, and each of them,
24 knew,or in the exercise of reasonable care should have known,that the conditions constituted an
25 extremely dangerous condition and unreasonable risk of serious injury or death to those who would
26 foreseeably be in the vicinity of or working on the Project,Kinder Pipeline or EBMUD Pipeline,
27 and that the danger would not be apparent to those persons,.such as MIGUEL REYES,deceased.
28 KMEP,SFPP,KMGP,KMI,and DOES 101-150,inclusive,and each of them,failed to avoid these
THIRD AMENDED COMPLAINT Page 21
f
I consequences or protect others,including MIGUEL REYES,deceased,from these consequences.
I
2 Under the circumstances of this case involving excavation next to the high-pressure Kinder Pipeline,
3 the conduct of KMEP,SFPP,KMGP,and KMI,and DOES 101-150,inclusive,and each of them,
4 was an extreme departure from the ordinary standard of conduct.
5 68. As a direct and legal result of the alleged conduct of KMEP,SFPP,KMGP,and KMI,
6 and DOES 101-150,inclusive,and each of them,MIGUEL REYES,deceased,was hurt and injured
7 in his health,strength,and activity,and ultimately died.He suffered unjustifiable and substantial
8 physical pain and mental suffering before his death.
9 WHEREFORE,Plaintiff LAURA REYES, as successor in interest to MIGUEL REYES,
10 deceased,prays judgment against KMEP,SFPP,KMGP,and KMI,and DOES 101-150,inclusive,
11 and each of them,as hereinafter set forth.
12 FOURTH CAUSE OF ACTION
13 NEGLIGENCE
14 AS AGAINST COMFORCE AND DOES 101-150,INCLUSIVE
15 (By LAURA REYES,Successor in Interest to MIGUEL REYES)
16 69. Plaintiffs, and each of them, incorporate each and every allegation contained in
17 paragraphs 1 through 68 above,as though fully set forth herein.
18 70. Because of the dangerous and ultrahazardous nature of the Project and the Kinder
19 Pipeline, and the location of the Kinder Pipeline in the vicinity of the EBMUD Pipeline,
20 COMFORCE,and DOES 101-150,inclusive, and each of them,had a nondelegable duty under,
21 among other things,OSHA regulations and California statutes and common law,to own,supervise,
22 control,survey,and operate the Kinder Pipeline in a safe manner to ensure the safety of the public
. 23 and those working on the Project,including MIGUEL REYES,deceased.
24 71.At all relevant times herein,COMFORCE,and DOES 101-150,inclusive,and each of
25 them,breached said nondelegable duty by,among other things:
26 ♦ negligently and carelessly and recklessly hiring,training,retaining,and supervising
27 its employees, agents, representatives, and independent contractors in the
28 performance of the work on the Kinder Pipeline in relation to the Project,including
THIRD AMENDED COMPLAINT Page 22
I but not limited to the determination of the location of the Kinder Pipeline before
2 allowing EBMUD,MOUNTAIN CASCADE,and DOES 1-100 and 201-250,and
3 each of them,to excavate and work in the area of the EBMUD Pipeline and Kinder
4 Pipeline;
5 ♦ negligently and carelessly and recklessly failing to create,obtain and/or analyze the
6 proper utility maps,plans and drawings showing the location of the Kinder Pipeline,
7 prior to allowing EBMUD,MOUNTAIN CASCADE,and DOES 1-100 and 201-
8 250,and each of them,to excavate and work in the area of the EBMUD Pipeline and
9 Kinder Pipeline;
10 ♦ negligently and carelessly and recklessly failing to obtain the proper permits and
11 other authority to allow for work to be completed in the vicinity of the Kinder
12 Pipeline and EBMUD Pipeline;
13 ♦ negligently and carelessly and recklessly failing to locate and field mark the location
14 of the Kinder Pipeline prior to the excavation by EBMUD,MOUNTAIN CASCADE
15 and DOES 1-100 and 201-250,inclusive,and each of them,in violation of,among
16 other things,Government Code section 4216.3;and
17 ♦ negligently and carelessly and recklessly failing to inspect,or failing to inspect as
18 frequently as necessary, the Kinder Pipeline during work on the Project where,
19 through contact with EBMUD and others (including Modern Continental
20 Construction, EBMUD, and DOES 1-100, and each of them,) COMFORCE and
21 DOES 101-150, and each of them, knew or should have known, that the Kinder
22 Pipeline could be damaged by excavation work for the Project.
23 72. The tortious conduct alleged above by COMFORCE,and DOES 101-150,inclusive and
24 each of them, was, among other things, negligent, careless, reckless, grossly negligent and/or
25 despicable,with the despicable conduct being carried on by COMFORCE, and DOES 101-150,
26 inclusive and each of them, with a willful and conscious disregard of the rights and/or safety of
27 others, including but not limited to MIGUEL REYES, deceased. Among other things,
28 COMFORCE, and DOES 101-150, inclusive, and each of them, was aware of the probable
THIRD AMENDED COMPLAINT Page 23
I dangerous consequences of its conduct and willfully and deliberately failed to avoid those
2 consequences,which resulted in the personal injuries and property damage,and subsequent death
3 of MIGUEL REYES,deceased.
4 73. COMFORCE,and DOES 101-150,inclusive,and each of them,acted so as to cause the
5 personal injury and property damage, and ultimate death of MIGUEL REYES, deceased, and to
6 legally cause the injuries and damages described below.
7 74. COMFORCE,and DOES 101-150,inclusive,and each of them,knew,or in the exercise
8 of reasonable care should have known, that the conditions constituted an extremely dangerous
9 condition and unreasonable risk of serious injury or death to those who would foreseeably be in the
10 vicinity of or working on the Project, Kinder Pipeline or EBMUD Pipeline, and that the danger
11 would not be apparent to those persons,such as MIGUEL REM,deceased. COMFORCE,and
12 DOES 101-150, inclusive, and each of them, willfully and deliberately failed to avoid these
13 consequences or protect others,including MIGUEL REYES,deceased,from these consequences.
14 Under the circumstances of this case involving excavation next to the high-pressure Kinder Pipeline,
15 the conduct of COMFORCE, and DOES 101-150, inclusive, and each of them, was an extreme
16 departure from the ordinary standard of conduct, and constitutes gross negligence, malice, and
17 oppression.
18 75. As a direct and legal result of the alleged conduct of COMFORCE,and DOES 101-150,
19 inclusive, and each of them, MIGUEL REYES, deceased, was hurt and injured in his health,
20 strength,and activity,and ultimately died.He suffered unjustifiable and substantial physical pain
21 and mental suffering before his death.
22 76. As a further direct and legal result of the alleged conduct of COMFORCE,and DOES
23 101-150,inclusive,and each of them,MIGUEL REYES incurred damage to his personal property,
24 before his death,in an amount according to proof at trial. The above-alleged acts of COMFORCE,
25 and DOES 101-150, inclusive, and each of them, were willful, wanton, malicious, oppressive,
26 despicable,and/or fraudulent,and justify an award of punitive damages. At all times mentioned
27 herein,COMFORCE,its employees,agents,representatives,independent contractors, and DOES
28 101-150,inclusive,and each of them were guilty of malice,oppression,fraud,and/or a willful and
THIRD AMENDED COMPLAINT Page 24
I conscious disregard for the rights of MIGUEL REYES, deceased. Given the dangerous and
2 ultrahazardous nature of the work performed on the Project, the Kinder Pipeline, and the close
3 proximity of the Kinder Pipeline to the EBMUD Pipeline, COMFORCE, its agents,employees,
4 independent contractors, representatives, and DOES 101-150, inclusive, and each of them,
5 performed work on the Project with a reckless indifference and willful and conscious disregard for
6 the rights of MIGUEL REYES,deceased.
7 77. PIaintiff is entitled to punitive damages against COMFORCE, and DOES 101-150,
8 inclusive,and each of them,as corporate defendants because an officer,director or managing agent
9 thereof had advance knowledge of the unfitness of its employees and employed or retained them
10 with a conscious disregard of the rights or safety of others, authorized or ratified the wrongful
11 conduct of its agents,employees, representatives,independent contractors,who were acting as an
12 officer, director or managing agent of COMFORCE,and DOES 101-150,and each of them, and
13 which officer,director or managing agent was personally guilty of oppression,fraud and/or malice.
14 WHEREFORE,Plaintiff LAURA REYES,as successor in interest to MIGUEL REYES,
15 deceased,prays judgment against COMFORCE,and DOES 101-150,inclusive,and each of them,
16 as hereinafter set forth.
17 FIFTH CAUSE OF ACTION
18 NEGLIGENCE
19 AS AGAINST CAROLLO AND CDM AND DOES 1-50,INCLUSIVE
20 (By LAURA REYES,successor in interest to MIGUEL REYES,deceased)
21 78. Plaintiffs incorporate each and every allegation contained in paragraphs 1 through 77
22 above,as.though fully set forth herein.
23 79. At all times relevant herein,CAROLLO and CDM,and DOES 1-50,inclusive,and each
24 of them, were engaged in the business of providing consulting, design and related engineering
25 services for the Project. CAROLLO and CDM, and DOES 1-50, inclusive, and each of them,
26 provided their drawings and plans to,among others,EBMUD.
27 80. Because of the dangerous and ultrahazardous nature of the Project,the Kinder Pipeline
28 and contents thereof,and the location of the Kinder Pipeline in the vicinity of the EBMUD Pipeline
THIRD AMENDED COMPLAINT Page 25
I and the Project, CAROLLO and CDM, and DOES 1-50, inclusive, and each of them, had a
2 nondelegable duty under, among other things, OSHA regulations and California'statutes and
3 common law,to plan and design the Project in a safe manner to ensure the safety of the public and
4 those working on the Project,including MIGUEL REYES,deceased.
5 81.At all relevant times herein,CAROLLO and CDM,and DOES 1-50,inclusive,and each
6 of them,breached said nondelegable duty by,among other things:
7 ♦ improperly preparing and designing the plans and maps for the Project. CAROLLO
8 and CDM, and DOES 51-50, inclusive, and each of them, were aware of the
9 incursion of the Kinder Pipeline into the Project's path, as evidenced by their
10 drawings;
11 ♦ improperly failing to evaluate the need for re-design of the Project at the time they,
12 and each of them, became aware of and discovered the proximity of the Kinder
13 Pipeline to the proposed EBMUD pipeline,and the incursion of the Kinder Pipeline
14 into the Project;
15 ♦ improperly failing to address missing data or request additional data after reviewing
16 the pot-holing data derived from field data in the vicinity of station 100+15;
17 ♦ with respect to CDM,and DOES 1-50,and each of them,improperly entering into
18 a subcontract with CAROLLO regarding the portion of the Project at issue in this.
19 lawsuit;and
20 ♦ with respect to CDM and DOES 1-50, and each of them,improperly supervising
21 CAROLLO regarding its work on the portion.of the Project at issue in this lawsuit.
22 82. The tortious conduct alleged above by CAROLLO and CDM,and DOES 1-50,inclusive
23 and each of them, was, among other things, negligent, careless, reckless, and grossly negligent.
24 Among other things,CAROLLO and CDM, and DOES 1-50, inclusive, and each of them, was
25 aware of the probable dangerous consequences of its conduct and failed to avoid those
26 consequences,which resulted in the personal injuries and property damage,and subsequent death
27 of MIGUEL REYES,deceased.
28 ///
THIRD AMENDED COMPLAINT Page 26
1 83.CAROLLO and CDM,and DOES 1-50,inclusive,and each of them,acted so as to cause
2 the personal injury and property damage,and ultimate death of MIGUEL REYES,deceased,and
3 to legally cause the injuries and damages described below.
4 84. CAROLLO and CDM,and DOES 1-50,inclusive,and each of them,knew,or in the
5 exercise of reasonable care should have known, that the conditions constituted an extremely
6 dangerous condition and unreasonable risk of serious injury or death to those who would foreseeably
7 be in the vicinity of or working on the Project,Kinder Pipeline or EBMUD Pipeline,and that the
8 danger would not be apparent to those persons,such as MIGUEL REM,deceased.CAROLLO
9 and CDM, and DOES 1-50, inclusive, and each of them, failed to avoid these consequences or
10 protect others, including MIGUEL REYES, deceased, from these consequences. Under the
11 circumstances of this case involving excavation next to the high-pressure Kinder Pipeline, the
12 conduct of CAROLLO and CDM,and DOES 1-50,inclusive,and each of them,was an extreme
13 departure from the ordinary standard of conduct.
14 85. As a direct and legal result of the alleged conduct of CAROLLO and CDM,and DOES
15 1-50,inclusive,and each of them,MIGUEL REYES,deceased,was hurt and injured in his health,
16 strength,and activity,and ultimately died.He suffered unjustifiable and substantial physical pain
17 and mental suffering before his death.
18 WHEREFORE,Plaintiff LAURA REYES, as successor in interest to MIGUEL REYES,
19 deceased,prays judgment against CAROLLO and CDM, and DOES 1-50,inclusive,and each of
20 them,as hereinafter set forth.
21 SIXTH CAUSE OF ACTION
22 STRICT LIABILITY
23 AS AGAINST KMEP,SFPP,KMGP,KMI AND DOES 101-150,INCLUSIVE
24 (By LAURA REYES,Successor in Interest to MIGUEL REYES)
25 86. Plaintiffs, and each of them, incorporate each and every allegation contained in
26 paragraphs 1 through 85 above,as though fully set forth herein.
27 87. KMEP, SFPP, KMGP, and KMI,and DOES 101-150, inclusive, and each of them,
28 designed, manufactured, sold, owned, controlled, operated, maintained, inspected, distributed,
THIRD AMENDED COMPLAINT Page 27
I transported,located,field marked,monitored,and managed the Kinder Pipeline and ultrahazardous
2 and flammable material contained therein.
3 88. Such activities create the existence of a high degree of risk of harm to persons,land and
4 personal property of others,create the likelihood that harm that results from it will be great,and are
5 inappropriate to the surrounding of residential neighborhoods, schools and highly-populated
6 communities where it was carred on,such that their value to such communities is outweighed by
7 their dangerous attributes.
8 89. Because of the dangerous and ultrahazardous nature and condition of the Kinder
9 Pipeline and contents contained therein,and the location of the Kinder Pipeline in the vicinity of
10 the EBMUD Pipeline and Project,KMEP,SFPP,KMGP and KMI,and DOES 101-150,inclusive,
11 and each of them,had a nondelegable duty to own,supervise,control,operate,manage,locate,field
12 mark,monitor,and inspect the Kinder Pipeline accurately and in a safe manner to ensure the safety
13 of the public and those working on the Project,including MIGUEL REYES,deceased.
14 90. As set forth above, MIGUEL REYES, deceased, was killed while working on the
15 Project and EBMUD Pipeline. The activities of KMEP,SFPP,KMGP and KMI,and DOES 101-
16 150, and each of them, were a substantial factor in causing injury and the subsequent death of
17 MIGUEL REYES,deceased. The harm to MIGUEL REYES,deceased, was of the kind that would
18 be anticipated as a result of the risk created by owning, supervising, controlling, operating,
19 managing, locating, field marking, monitoring, and inspecting the Kinder Pipeline through a
20 residential neighborhood,near a school and through a highly-populated community.
21 91. KMEP, SFPP, KMGP, and KMI, and DOES 101-150, inclusive, and each of them,
22 caused the personal injury and ultimate death of MIGUEL REYES,deceased,and legally caused
23 the injuries and damages described below.
24 92. As a direct and legal result of the dangerous and ultrahazardous conditions designed,
25 manufactured,sold,owned,controlled,operated,maintained,inspected,distributed,transported,
26- located,field marked,monitored,and managed by KMEP,SFPP,KMGP,and KMI,and DOES 101-
27 150,inclusive,and each of them,MIGUEL REM,deceased,was hurt and injured in his health,
28 strength,and activity,and ultimately died.He suffered unjustifiable and substantial physical pain
THIRD AMENDED COMPLAINT Page 28
I and mental suffering before his death.
2 93. As a further direct and legal result of the dangerous and ultrahazardous conditions
3 designed, manufactured, sold, owned, controlled, operated, maintained, inspected, distributed,
4 transported,located,field marked,monitored,and managed by KMEP,SFPP,KMGP,and KMI,
5 and DOES 101-150,inclusive,and each of them,MIGUEL REYES incurred damage to his personal
6 property, before his death, in an amount according to proof at trial. The above-alleged acts of.
7 KMEP,SFPP, KMGP,and KMI, and DOES 101-150,inclusive,and each of them,were willful,
8 wanton, malicious, despicable, oppressive, and/or fraudulent, and justify an award of punitive
9 damages. At all times.mentioned herein,KMEP,SFPP,KMGP,and KMI,its employees,agents,
10 representatives,independent contractors, and DOES 101-150,inclusive, and each of them were
11 guilty of malice, oppression, fraud, and/or a willful and conscious disregard for the rights of
12 MIGUEL REYES,deceased. Given the dangerous and ultrahazardous nature of the work performed
13 on the Project,the Kinder Pipeline,and the close proximity of the Kinder Pipeline to the EBMUD
14 Pipeline, KMEP, SFPP, KMGP, and KMI, its agents, employees, independent contractors,
15 representatives,and DOES 101-150,inclusive,and each of them,performed work on the Project
16 with a reckless indifference and willful and conscious disregard for the rights of MIGUEL REYES,
17 deceased.
18 94. Plaintiff is entitled to punitive damages against KMEP,SFPP,KMGP,and KMI,and
19 DOES 101-150,inclusive,and each of them,as corporate defendants because an officer,director
20 or managing agent thereof had advance knowledge of the unfitness of its employees and employed
21 or retained them with a conscious disregard of the rights or safety of others,authorized or ratified
22 the wrongful conduct of its agents,employees, representatives,independent contractors who were
23 acting as an officer,director or managing agent of KMEP,SFPP,KMGP,and KMI,and DOES 101-
24 150, and each of them, and which officer, director or managing agent was personally guilty of
25 oppression,fraud and/or malice.
26 WHEREFORE,Plaintiff LAURA REYES, as successor in interest to MIGUEL REYES,
27 deceased,prays judgment against KMEP,SFPP,KMGP,and KMI,and DOES 101-150,inclusive,
28 and each of them,as hereinafter set forth.
THIRD AMENDED COMPLAINT Page 29
I SEVENTH CAUSE OF ACTION
2 WILLFUL MISCONDUCT
3 AGAINST KMEP,SFPP,KMGP,KMI,AND DOES 51-150,INCLUSIVE
4 (By LAURA REYES,as successor in interest to MIGUEL REYES,deceased)
5 95. Plaintiffs, and each of them, incorporate each and every allegation contained in
6 paragraphs 1 through 94 above,as though fully set forth herein.
7 96. KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, knew that
8 construction workers were excavating a trench in connection with the Project,in accordance with
9 the written contract between EBMUD and MOUNTAIN CASCADE,and DOES 1-100,and each
10 of them. KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,knew that the route
11 of the EBMUD Pipeline was to be parallel to,east of and above the Kinder Pipeline,which was
12 owned and operated by KMEP,SFPP,KMGP,KMI and DOES 51-150,and each of them.
13 97. KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,were the operators
14 or owners of a subsurface installation within the meaning of Government Code section 4216.
15 98. KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,knew that EBMUD's
16 contract with MOUNTAIN CASCADE,and DOES 51-100,and each of them,required compliance
17 with all applicable statutes,laws,regulations,orders and standards.
18 99. KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,knew that to guard
19 against extreme risk of injury to persons and property,including those working on the Project such
201 as MIGUEL REYES,deceased,the contract between EBMUD and MOUNTAIN CASCADE,and
21 DOES 51-100,specified,among other things,that work along South.Broadway in Walnut Creek,
22 California was adjacent to the Kinder Pipeline,that construction activities should be coordinated
23 with,among others,Larry Hosler,manager pipeline maintenance and Roy Bridge,manager pipeline
24 safety,for KMEP,SFPP,KMGP,KMI,and DOES 51-150,and MOUNTAIN CASCADE.
25 100. KMEP, SFPP, KMGP, KMI,and DOES 51-150, and each of them,knew that the
26 Kinder Pipeline had to be properly located in advance of excavation to avoid any physical contact
27 with the Kinder Pipeline as a result of any construction activities.
28
THIRD AMENDED COMPLAINT Page 30
1 101. KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,were aware of their
2 respective responsibilities under, among other things, the Government Code and Code of
3 Regulations to properly plan and design the Project and determine the location of and properly field
4 mark the Kinder Pipeline to allow for safe excavation in the vicinity thereof.
5 102.KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,knew that operating,
6 locating,field marking,and excavating in the vicinity of the Kinder Pipeline created the existence
7 of a special,high degree of risk of harm to persons and property,including those working on the
8 Project with welding tools,such as MIGUEL REYES,deceased. KMEP,SFPP,KMGP,KMI,and
9 DOES 51-150,and each of them,knew that Matamoros Pipeline,Inc.,and its employees including
10 MIGUEL REYES,deceased,were using welding instruments to weld the EBMUD Pipeline,which
11 considerably increased the extreme risk of harm due to highly flammable nature of the contents of
12 the Kinder Pipeline.
13 103. KMEP, SFPP,KMGP,KMI, and DOES 51-150, and each of them,knew that those
14 working on the Project, including MIGUEL REYES, deceased, would rely on, among others,
15 KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them,for their safety to properly
16 design,plan,locate,field mark,and excavate in the vicinity of the Kinder Pipeline in compliance
17 with state laws,statutes,orders,and regulations.
18 104. KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,has experienced
19 several accidents relating to its pipelines,including but not limited to those incidents referenced in
20 the General Allegations set forth above. KMEP,SFPP,KMGP,KMI,and DOES 51-.150,and each
21 of them,have experienced at least 44 accidents relating to its pipelines since January 1,2003. Of
22 these 44 accidents, at least 14 resulted in releases of more than five barrels of refined petroleum
23 products into the surrounding environment. At least 8 known accidents resulting in releases into
24 the surrounding environment have occurred since April 27,2004. All 8 of these accidents occurred
25 in or near high consequence areas (as defined in 49 C.F.R. section 195.450) and/or major
26 transportation corridors. Of these 8 accidents,5 are attributed to outside force damage(e.g.third
27 party damage caused by an excavator or other source,damage caused during construction,etc.) At
28 least 3 of these 5 instances went unaddressed by KMEP,SFPP,KMGP,KMI,and DOES 51-150,
THIRD AMENDED COMPLAINT Page 31
I and each of them,for an indeterminate period despite internal inspection tool runs conducted on the
2 pipelines prior to the accidents.Approximately 50%of reported hazardous liquid pipeline accidents
3 suffered by KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,between 1998 and
4 2003 were caused by outside forces.
5 105. According to the United States Department of Transportation's "Pipeline and
6 Hazardous Materials Safety Administration,"the recent accidents of KMEP,SFPP,KMGP,KMI,
7 and DOES 51-150, and each of them, indicate a "widespread failure to adequately detect and
8 address the effects of outside force damage and corrosion. This failure has systematically affected
9 the integrity of the Pacific Operations Unit." This pattern and practice of KMEP,SFPP,KMGP,
10 KMI,and DOES 51-150,and each of them,is one to put profits over people,in that KMEP,SFPP,
11 KMGP,KMI,and DOES 51-150,and each of them,believe that few adverse consequences will
12 result from its.failures to avoid accidents involving the pipelines. This systematic failure flows from
13 the top on down through the corporate levels of KMEP,SFPP,KMGP,KMI,and DOES 51-150,
14 and each of them,and includes those decision making individuals including the officers,directors
15 and managing agents of KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them.
16 106. KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,additionally knew
17 that in the six years prior to November 9,2004,MOUNTAIN CASCADE,and DOES 51-100,and
18 each of them,accumulated several safety violations,and was issued several citations from California
19 OSHA for workplace accidents,including but not limited to,the death a worker when a pipe fell on
20 him in March of 2004, the death of a worker when a crane he tried to operate without training
21 collapsed and smashed him against a pipe, severe lung damage suffered by three workers when
22 poisonous gases overcame them in a sewer in which they were working,and the personal injury of
23 a.worker when his leg was crushed between two water trucks.KMEP,SFPP,KMGP, KMI, and
24 DOES 51-150,and each of them,additionally knew that MOUNTAIN CASCADE,and DOES 51-
25 100,were also the subject of several civil lawsuits involving wrongful death,as well as criminal
26 prosecutions.
27 107. KMEP,SFPP,KMGP,KMI,and DOES.51-150,and each of them,knew that the initial
28 contract with EBMUD was awarded to Modern Continental Co.,which contract was terminated by
THIRD AMENDED COMPLAINT Page 32
I EBMUD. KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,knew that in or about
2 2003 or 2004,Modern Continental Co.was excavating for the EBMUD Pipeline and determined
3 that a segment of the Kinder Pipeline was approximately 13 feet from where it had been field
4 marked by KMEP, SFPP, KMGP, KMI, and DOES 101-150, and each of them. Modern
5 Continental Co.expressed this concern to,among others,EBMUD,KMEP,SFPP,KMGP,KMI,
6 COMFORCE,and DOES 1-50 and 101-150,and each of them. In addition,in or about August of
7 2003,EBMUD requested that KMEP,SFPP,KMGP,KMI,and DOES 101-150,and each of them,
8 relocate a section of the Kinder Pipeline because it was,among other things,hard to locate and a
9 hindrance to completion of the Project. In or about early 2004,Modern Continental,EBMUD,and
10 DOES 1-50,and each of them,were extremely concerned about the location of the Kinder Pipeline
11 because it was still in the way of the excavation for the EBMUD Pipeline and Project. Among
12 others,Modern Continental,EBMUD,KMEP,SFPP,KMGP,KMI,and DOES 1-150,and each of
13 them,discussed in early 2003 the location of the Kinder Pipeline and how to continue working on
14 the Project despite the location of the Kinder Pipeline.
15 108. KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,knew that prior to
16 November 9,2004,EBMUD awarded its contract to MOUNTAIN CASCADE,who advertises that
17 it"routinely take[s]on tough projects that our competitors shy away from and turn them into profit,"
18 and that the foundation of its success is built on its dedication to"knowledge,integrity,quality and
19 superior service." KMEP,SFPP,KMGP,KMI,and DOES 51-150, and each of them,knew that
20 KMEP,SFPP,KMGP,KMI and DOES 101-150,and each of them,had numerous recent accidents
21 involving its pipelines,and that MOUNTAIN CASCADE and DOES 51-100,and each of them,had
22 numerous recent workplace injuries.
23 1 109.'Because of the construction work in the direct vicinity of the high pressure Kinder
24 Pipeline,KMEP, SFPP, KMGP,KMI,and DOES 51-150,and each of them,knew that it had to
25 guard against the extreme risk of injury to persons and/or property in the area, including those
26 persons working on the Project along with the general public. KMEP, SFPP,KMGP,KMI, and
27 DOES 51-150,and each of them,knew that construction activities were to be coordinated with all
28 parties participating in the Project.
THIRD AMENDED COMPLAINT Page 33
1 110. KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,knew of the peril
2 of an explosion if the flammable liquids or gasses inside the Kinder Pipeline escaped in the vicinity
3 of the construction of the EBMUD Pipeline where workers,including MIGUEL REYES,deceased,
4 worked with welding tools. KMEP,SFPP,KMGP,KMI,COMFORCE,and DOES 51-150,and
5 each of them, knew that the injury and subsequent death of MIGUEL REYES, deceased,was a
6 probable,as opposed to possible,result of that danger,as MIGUEL REYES,deceased,was working
7 inside the EBMUD Pipeline using welding tools,and had no means of making an easy or fast escape
8 in the event of an explosion and thus would be trapped inside the EBMUD Pipeline.
9 111. At all relevant times herein,KMEP,SFPP,KMGP,KMI, and DOES 51-150,and each
10 of them, intentionally, knowingly, deliberately, and/or consciously failed to avoid the above-
11 referenced peril by,among other things:
12 failing to hire,train,retain and supervise its employees,representatives,agents and
13 independent contractors with respect to the performance of the work on the Project.
14 For example,employees lacked the experience and knowledge to read the maps and
15 drawings showing the location of the Kinder Pipeline, and in fact, failed to even
16 review such maps and drawings. KMEP,SFPP,KMGP,KMI,and DOES 51-150,
17 and each of them, failed to train its employees with respect to the importance of
18 reviewing and analyzing the necessary maps and drawings to determine the accurate
19 location of the Kinder Pipeline,and how to review and analyze such drawings and
20 maps;
21 ♦ failing to correctly determine the location of the Kinder Pipeline before allowing
22 excavation in the area of the EBMUD Pipeline and Kinder Pipeline,pursuant to,
23 among other things,Government.Code section 4216.4. Among others,Mike Biggs,
24 Peter Brooks,and Mark Presley failed to review and analyze the maps and drawings,
25 and instead relied on their visual observation that there was no tree in the area of the
26 Kinder.Pipeline. In fact,the tree had been removed years prior but the roots still
27 existed and the offset of the Kinder Pipeline was present;
28
THIRD AMENDED COMPLAINT Page 34
I ♦ failing to create,obtain and/or analyze the proper utility maps,plans and drawings
2 showing the location of the Kinder Pipeline, prior to allowing EBMUD,
3 MOUNTAIN CASCADE, and DOES 1-100 and 201-250, and each of them, to
4 excavate and work in the area of the EBMUD Pipeline and Kinder Pipeline;
5 ♦ failing to relocate the Kinder Pipeline to a location away from the immediate vicinity
6 of the Project and EBMUD Pipeline after concerns were previously brought forth by,
7 among others, EBMUD and Modern Continental regarding the location of the
8 Kinder Pipeline to the EBMUD Pipeline and Project.
9 ♦ failing to address the concerns of entities working on the Project or who worked on
10 the project(including among others Modern Continental Construction Co.,EBMUD,
11 and DOES 1-50,and each of them)regarding the location of the Kinder Pipeline to
12 the vicinity of the EBMUD Pipeline,and failing to inform MOUNTAIN CASCADE
13 and DOES 51-100 and 201-250,and each of them,of these concerns;
14 ♦ falsely representing to MOUNTAIN CASCADE,EBMUD and others the location
15 of the Kinder Pipeline,such that Mike Biggs,Mark Presley and Peter Brooks stated
16 to EBMUD, MOUNTAIN CASCADE, and others that the field marking was
17 accurate,that excavators need only follow the field marking devices to avoid conflict
18 with the Kinder Pipeline and that additional locating and monitoring was
19 unnecessary. The Kinder Pipeline was not located where KMEP, SFPP, KMGP,
20 KMI,and DOES 51-150, and each of them,represented it to be.Further, KMEP,
21 SFPP,KMGP,KMI,and DOES 51-150,and each of them,failed to locate and field
22 mark the location which may be affected by the excavation to the extent and degree
23 of accuracy that the information was available either in their own records or through
24 standard locating techniques other than excavation. In fact,Mark Presley admitted
25 that he often did not even use drawings or maps,as he found them to be inaccurate.
26 Mr.Presley stated that the Kinder Pipeline only bent around tree roots,and since he
27 saw no tree,the Kinder Pipeline did not deviate from a straight path;and
28
TFIIRD AMENDED COMPLAINT Page 35
I ♦ falsely representing to MOUNTAIN CASCADE, EBMUD and others that they
2 employed properly trained and supervised personnel to locate and field mark the
3 Kinder Pipeline. Among others,both Mike Biggs,Mark Presley and Peter Brooks
4 lacked the skills and experience necessary to accurately read and interpret drawings
5 and maps,and to actually know that the reading of drawings and maps was crucial
6 to locating the Kinder Pipeline.
7 112. The conduct alleged above by KMEP, SFPP, KMGP, KMI, and DOES 51-150,
8 inclusive and each of them,was,among other things,despicable conduct being carried on with a
9 willful and conscious disregard of the rights and/or safety of others,including but not limited to
10 MIGUEL REYES,deceased. Among other things,KMEP,SFPP,KMGP,KMI,and DOES 101-
11 150,inclusive,and each of them,was aware of the probable dangerous consequences of its conduct
12 and willfully and deliberately failed to avoid those consequences, which resulted in the personal
13 injuries and property damage,and subsequent death of MIGUEL REYES,deceased.
14 113. When KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,made the
15 representations as set forth above, they knew them to be false, had no reasonable ground for
16 believing them to be true,and knew that they did not have the knowledge which they professed.
17 114. Although the representations were not made directly to MIGUEL REYES,deceased,
18 KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, made the representations to
19 MOUNTAIN CASCADE and others with the intent that such representations be relied upon in
20 excavating the EBMUD Pipeline. MIGUEL REYES, deceased, is entitled to protection as he
21 suffered property damage and physical injury and subsequent death resulting from MOUNTAIN
22 CASCADE's and others justifiable reliance on the representations that the Kinder Pipeline was
23 properly marked.
24 115. Matamoros Pipeline,Inc.,and its employees,including MIGUEL REYES,deceased,
25 justifiably relied on said representations that the workplace was safe from extreme risk of harm.'As
26 a result,MIGUEL REYES,deceased,was injured in his person and also sustained personal property
- . 27 damage,and subsequently died.
28 /// •
THIRD AMENDED COMPLAINT Page 36
1 116. KMEP, SFPP, KMGP, and KMI, and DOES 51-150, inclusive, and each of them,
2 knew,or in the exercise of reasonable care should have known,that the conditions constituted an
3 extremely dangerous condition and unreasonable risk of serious injury or death to those who would
4 foreseeably be in the vicinity of or working on the Project,Kinder Pipeline or EBMUD Pipeline,
5 and that the danger would not be apparent to those persons,such as MIGUEL REYES,deceased.
6 KMEP, SFPP, KMGP, KMI, and DOES 51-150, inclusive, and each of them, willfully and
7 deliberately failed to avoid these consequences or protect others, including MIGUEL REYES,
8 deceased,from these consequences. Under the circumstances of this case involving excavation next
9 to the high-pressure Kinder Pipeline,the conduct of KMEP,SFPP,KMGP,KMI,and DOES 51-
10 150,inclusive,and each of them,constitutes malice,oppression and/or fraud.
11 117. As a direct and legal result of the alleged conduct of KMEP,SFPP,KMGP,and KMI,
12 and DOES 51-150,inclusive,and each of them,MIGUEL REYES,deceased,was hurt and injured
13 in his health,strength,and activity,and ultimately died.He suffered unjustifiable and substantial
14 physical pain and mental suffering before his death.
15 118. The above-alleged acts of KMEP,SFPP,KMGP,KMI,and DOES 51-150,inclusive,
16 and each of them,were willful,wanton,malicious,oppressive,despicable,and/or fraudulent,and
17 justify an award of punitive damages. At all times mentioned herein,KMEP,SFPP,KMGP,KMI,
18 its employees,agents,representatives,independent contractors, and DOES 51-150,inclusive,and
19 each of them were guilty of malice,oppression,fraud,and/or a willful and conscious disregard for
20 the rights of those working on the EBMUD Pipeline,including MIGUEL REM,deceased. Given
21 the dangerous and ultrahazardous nature of the work performed on the Project,the Kinder Pipeline,
22 and the close proximity of the Kinder Pipeline to the EBMUD Pipeline,the false representations and
23 conduct of KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them,was despicable,
24 malicious,fraudulent,oppressive, and made with a conscious disregard for the safety of, among
25 others,MIGUEL REYES,deceased.
26 119. Plaintiff is entitled to punitive damages against KMEP, SFPP, KMGP, KMI, and
27 DOES 51-150,inclusive,and each of them,as corporate defendants because an officer,director or
28 managing agent thereof had advance knowledge of the unfitness of its employees, agents,
THIRD AMENDED COMPLAINT Page 37
I representatives,or independent contractors(including but not limited to Mike Biggs,Mark Presley
2 and Peter Brooks)and employed or retained them with a conscious disregard of the rights or safety
3 of others, authorized or ratified the wrongful conduct of its agents, employees, representatives,
4 independent contractors and DOES 51-150, and each of them, who were acting as an officer,
5 director or managing agent of KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,
6 and which officer; director or managing agent was personally guilty of oppression, fraud and/or
7 malice. Among other things,an officer,director or managing agent of KMEP,SFPP,KMGP,KMI,
8 and DOES 51-150,and each of them,ratified the conduct of its employees,agents,representatives
9 or independent contractors by continuing to employ them,failing to criticize,censure,reprimand,
10 terminate, suspend or take other remedial action against them,issuing press releases, interfering
11 with attempts of the regulatory agencies including Cal-OSHA to interview them, and providing
12 them with legal counsel so as to defend their conduct. Furthermore,a vice-president of operations
13 and engineering of KMEP, SFPP, KMGP, KMI, and DOES 51-150, inclusive, falsely stated in
14 questions following the incident that"the workers had been provided maps and should have been
15 aware of the fuel pipeline's location." The press release issues by KMEP,SFPP,KMGP,KMI,and
16 DOES 51-150, inclusive, dated November 10, 2004 stated that defendants "do not expect this
17 incident will have significant adverse financial impact,"nor did it appear the incident"will require
18 major environmental clean-up."
19 120. Despite full knowledge of the consistent pattern and practice of conduct by its
20 employees, agents, representatives or independent contractors which led to regularly occurring
21 pipeline accidents,and despite full awareness of all dangers to human life and property associated
22 with pipeline incidents,KMEP,SFPP,KMGP,KMI,and DOES 51-150,inclusive,intentionally,
23 deliberately and/or consciously failed to improve,update,revise, or change its ineffective safety
24 policies and practices, training of employees, and communication within the ranks of the
25 corporation,which led directly to its prior incidents and the incident involving MIGUEL REYES,
26 deceased.
27 121. The above-described conduct of KMEP, SFPP, KMGP, KMT, and DOES 51-150,
28 inclusive, which includes intentional and conscious disregard of safety standards and acting in a
THIRD AMENDED COMPLAINT Page 38
I manner calculated to stonewall and/or deceive regulatory authorities for their own financial benefit
2 was despicable and carried on with a willful and conscious disregard for the rights and safety of
3 others,including MIGUEL REYES,deceased.
4 WHEREFORE,Plaintiff LAURA REYES, as successor in interest to MIGUEL REYES,
5 deceased,prays judgment against KMEP,SFPP,KMGP,KMI,and DOES 51-150,inclusive,and
6 each of them,as hereinafter set forth.
7 EIGHTH CAUSE OF ACTION
8 WILLFUL MISCONDUCT
9 AGAINST MOUNTAIN CASCADE,AND DOES 51-100,and 151-250,INCLUSIVE
10 (By LAURA REYES,as successor in interest to MIGUEL REYES,deceased)
11 122. Plaintiffs, and each of them, incorporate each and every allegation contained in
12 paragraphs 1 through 121 above,as though fully set forth herein.
13 123. MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,knew that its
14 workers were excavating a trench for the EBMUD Pipeline,with the route of the EBMUD Pipeline
15 being generally parallel to the high-pressure Kinder Pipeline.MOUNTAIN CASCADE,and DOES
16 51-100, and 151-250, inclusive, further knew that workers were working inside the EBMUD
17 Pipeline while using welding tools,which work was in close proximity to the excavation work.
18 124. MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,knew that it had
19 to guard against extreme risk of injury to persons and property,while digging near or in the vicinity
20 of the Kinder Pipeline. MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,knew
21 that its construction activities were to be coordinated with others working on the Project to ensure
22 the safety of all of those working on the Project. MOUNTAIN CASCADE,and DOES 51-100,and
23 151-250, inclusive, knew of the requirements for notification of excavation, locating of, and
24 excavation when working near or in the vicinity of existing utilities,including but not limited to
25 those requirements under Government Code sections 4216.2 and 4216.4, and knew of the
26 importance of reviewing and analyzing drawings and maps to determine the location of the Kinder
27 Pipeline.
28
THIRD AMENDED COMPLAINT Page 39
1 125. MOUNTAIN CASCADE, and DOES 51-100, and 151-250, inclusive, knew that
2 EBMUD terminated its prior contract with the initial general contractor (Modern Continental
3 Construction Co.) on the Project and that Modern Continental Construction Co. had previous
4 expressed concerns to EBMUD,KMEP,SFPP,KMGP,KMI,COMFORCE,and DOES 51-150,
5 regarding the location of the Kinder Pipeline with respect to the EBMUD Pipeline.
6 126. At all times relevant hereto,MOUNTAIN CASCADE,and DOES 51-100,and 151-
7 250, inclusive, represented and advertised that the foundation of its success is its "dedication to
8 knowledge,integrity,quality and superior service"and that it"routinely take(s)on tough projects
9 that our competitors shy away from and turn them into profit."
10 127. MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,knew that it had
I l experienced several work related incidents in the past relating to a failure to abide by safety
12 standards, including at least two deaths in the last five years, with the most recent occurring in
13 March of 2004 when a worker was crushed while unloading a pipe. Despite this knowledge,
14 MOUNTAIN CASCADE, and DOES 51-100, and 151-250,inclusive, knowingly employed the
15 same supervisory employee whose crew was responsible for that incident for the EBMUD Project.
16 MOUNTAIN CASCADE,and DOES 51-100,and 151-250,were also the subject of several civil
17 lawsuits involving wrongful death,as well as criminal prosecutions.
. 18. 128.MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,knew of the peril
19 of an explosion if the flammable liquids or gasses inside the Kinder Pipeline escaped in the vicinity
20 of the construction of the EBMUD Pipeline where workers,including MIGUEL REYES,deceased,
21 worked with welding tools.MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,
22 knew that the injury and subsequent death of MIGUEL REM, deceased, was a probable, as
23 opposed to possible,result of that danger,as MIGUEL REYES,deceased,was working inside the
24 EBMUD Pipeline using welding tools,and had no means of making an easy or fast escape in the
25 event of an explosion and thus would be trapped inside the EBMUD Pipeline.
26 129. MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,intentionally,
27 knowingly,deliberately,and/or consciously failed to avoid the above-referenced peril by,among
28 other things:
THIRD AMENDED COMPLAINT Page 40
I ♦ failing to hire,train,retain and supervise its employees,representatives,agents and
2 independent contractors with respect to the performance of the work on the Project.
3 MOUNTAIN CASCADE, and DOES 51-100, and 151-250, inclusive, failed to
4 advise or train its employees who operated power operated or power driven
5 backhoes and other equipment on the Project that the Kinder Pipeline was a high-
6 pressure pipeline carrying flammable liquids. For instance, a backhoe operator
7 (David Bauer) who had dug across or within three feet of the Kinder Pipeline
8 approximately 10 days before the incident represented that he thought the placards
9. warning of a Kinder Pipeline in the right of way marked an abandoned petroleum
10 line that was being removed. MOUNTAIN CASCADE, and DOES 51-100, and
11 151-250,inclusive,failed to train,instruct and communicate with its employees of
12 the meaning of the placards or field markings;
13 ♦ failing.to determine the location of the Kinder Pipeline through a review of maps
14 and drawings. For instance, superintendent Sean Ross considered plans to be
15 "guidelines"and"95%of the time not accurate." Additionally,neither Sean Ross
16 and Gene Im,foreman,reviewed any plans or drawings prior to allowing excavation,
17 rather they told the operators to dig in a straight line,even though they knew that
18 there was a bend in the Kinder Pipeline. Furthermore,the backhoe operator(Greg
19 Berry) who struck the Kinder Pipeline was never shown and never reviewed any
20 maps or drawings prior to the incident with respect to the location of the Kinder
21 Pipeline;
22 ♦ failing to determine the location of the Kinder Pipeline by excavating with hand
23 tools. For instance,a backhoe operator(David Bauer)had dug across or within three
24 feet of the Kinder Pipeline approximately 10 days before the incident. Furthermore,
25 the backhoe operator(Greg Berry)who struck the Kinder Pipeline never used any
.26 hand tools to determine the location of the Kinder Pipeline prior to using his
27 backhoe and striking the Kinder Pipeline;
28
THIRD AMENDED COMPLAINT Page 41
I ♦ representing to,among others,EBMUD and KMEP,SFPP,KMGP,KMI,and DOES
2 51-150,inclusive,on or about September 28,2004 and November 2,2004 that it was
3 aware of the exact location of the Kinder Pipeline. The representations were made
4 by, among others, Sean Ross, which representations were in fact false as
5 MOUNTAIN CASCADE,and DOES 51-100,and 151-250,had not determined the
6 exact location of the Kinder Pipeline through either the review and analysis of
7 drawings and maps,or by excavating with hand tools;
8 ♦ attempting,through pressure by and requirements of EBMUD and DOES 1-50,and
9 each of them, to complete the work on the Project in a time frame that was not
10 feasible without endangering the safety of the public and those working on the
11 Project,including MIGUEL REYES,deceased. For instance,superintendent Sean
12 Ross considered it "not a good idea to ask for a re-mark"of the Kinder Pipeline
13 because it would have to stop work for 48 hours at the expense of profit;
14 ♦ failing to require KMEP,SFPP,KMGP and KMI,and DOES 101-150,and each of
15 them,to relocate the Kinder Pipeline to a location away from the immediate vicinity
16 of the Project. Although MOUNTAIN CASCADE,and DOES 51-100,and 151-
17 250,inclusive,knew that Modern Continental Construction Co.had concerns about
18 the location of the Kinder Pipeline to the EBMUD Pipeline,and knew that there was
19 a bend in the Kinder Pipeline,MOUNTAIN CASCADE, and DOES 51-100, and
20 151-250,inclusive,did not stop work on the Project and require the relocation of the
21 Kinder Pipeline or relocation of the Project away from the Kinder Pipeline;
22 ♦ failing to inquire as to concerns of other entities working on the Project or who
23 worked on the project(including among others Modern Continental Construction
24 Co.,EBMUD,KMEP,SFPP,KMGP,KMI and DOES 1-50 and 101-150,and each
25 of them)regarding the location of the Kinder Pipeline to the vicinity of the Project
26 and EBMUD Pipeline. MOUNTAIN CASCADE,and DOES 51-100,and 151-250, t�
_ 27 inclusive, took the contract with EBMUD for financial profit, consistent with its `
28 motto that it"routinely take(s)on tough projects that our competitors shy away from
THIRD AMENDED COMPLAINT Page 42
J
714 �
I and tum them into profit;"
2 ♦ failing to conduct daily inspections,or requiring others to conduct,by a competent
3 individual prior to the start of work and as needed throughout the shift for evidence
4 of a situation that could result in a dangerous and ultrahazardous condition,such as
5 the condition resulting in the death.of MIGUEL REYES,deceased;
6 ♦ failing to remove,or requiring others to remove, individuals working on the Project, .
7 including MIGUEL REYES,deceased,from the dangerous and ultrahazardous area
8 until necessary precautions had been taken to ensure the safety of those individuals,
9 including MIGUEL REYES;and
10 ♦ failing to timely contact or notify Underground Service Alert prior to excavating,or
11 allowing excavation,near the Kinder Pipeline and EBMUD Pipeline. For instance,
12 the operator of the backhoe(Greg Berry)did not observe any field markings on the
13 ground near or in the vicinity of the Kinder Pipeline,yet MOUNTAIN CASCADE, .
14 and DOES 51-100,and 151-250,inclusive,failed to contact Underground Service
15 Alert or any other entity, about the lack of field markings, because such contact
16 would have resulted in delay of the project and loss of profits.
17 130. The conduct alleged above by MOUNTAIN CASCADE,and DOES 51-100,and 151-
1.8 250, inclusive, was, among other things, despicable conduct being carried on with a willful and
19 conscious disregard of the rights and/or safety of others, including but not limited to MIGUEL
20 REYES,deceased. Among other things,MOUNTAIN CASCADE,and DOES 51-100,and 151-
21 250,inclusive,was aware of the probable dangerous consequences of its conduct and willfully and
22 deliberately failed to avoid those consequences,which resulted in the personal injuries and property-
23 damage,and subsequent death of MIGUEL REYES,deceased.
24 131. When MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,made the
25 representations as set forth above, they knew them to be false, had no reasonable ground for
26 believing them to be true,and knew that they did not have the knowledge which they professed.
27 132. Although the representations were not made directly to MIGUEL REYES,deceased,
28 MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,made the representations to,
THIRD AMENDED COMPLAINT Page 43
I among others,EBMUD with the intent that such representations be relied upon in excavating the
2 EBMUD Pipeline. MIGUEL REYES, deceased, is entitled to protection as he suffered property .
3 damage and physical injury and subsequent death resulting from justifiable reliance on the
4 representations that the Kinder Pipeline was properly marked.
5 133. Matamoros Pipeline,Inc.,and its employees,including MIGUEL REYES,deceased,
6 justifiably relied on said representations that the workplace was safe from extreme risk of harm. As
7 a result,MIGUEL REYES,deceased,was injured in his person and also sustained personal property
8 damage,and subsequently died.
9 134. MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,acted so as to
10 cause the personal.injury and property damage,and ultimate death of MIGUEL REYES,deceased,
11 and to legally cause the injuries and damages described below.
12 135.MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,knew,or in the
13 exercise of reasonable care should have known, that the conditions constituted an extremely
14 dangerous condition and unreasonable risk of serious injury or death to those who would foreseeably
15 be in the vicinity of or working on the Project,Kinder Pipeline or EBMUD Pipeline,and that the
16 danger would not be apparent to those persons,such as MIGUEL REYES,deceased.MOUNTAIN
17 CASCADE,and DOES 51-100,and 151-250,inclusive,willfully and deliberately failed to avoid
18 these consequences or protect others, including MIGUEL REYES, deceased, from these
19 consequences. Under the circumstances of this case involving excavation next to the high-pressure
20 Kinder Pipeline, the conduct of MOUNTAIN CASCADE, and DOES 51-100, and 151-250
21 inclusive,constitutes malice,oppression and/or fraud.
22 136. As a direct and legal result of the alleged conduct of MOUNTAIN CASCADE,and
23 DOES 51-100, and 151-250,inclusive,MIGUEL REYES,deceased,was hurt and injured in his
24 health,strength,and activity,and ultimately died.He suffered unjustifiable and substantial physical
25 pain and mental suffering before his death.
26 137. The above-alleged acts of MOUNTAIN CASCADE,and DOES 51-100,and 151-250,
27 inclusive,were willful,wanton,malicious,oppressive,despicable,and/or fraudulent,and justify an
28 award of punitive damages.. At all times mentioned herein,MOUNTAIN CASCADE,and DOES
THIRD AMENDED COMPLAINT Page 44
1 51-100, and 151-250, inclusive, were guilty of malice, oppression, fraud, and/or a willful and
2 conscious disregard for the rights of those working on the EBMUD Pipeline,including MIGUEL
3 REYES,deceased. Given the dangerous and ultrahazardous nature of the work performed on the
4 Project,the Kinder Pipeline,and the close proximity of the Kinder Pipeline to the EBMUD Pipeline,
5 the false representations and conduct of MOUNTAIN CASCADE,and DOES 51-100,and 151-250,
6 inclusive,was despicable,malicious,fraudulent,oppressive,and made with a conscious disregard
7 for the safety of,among others,MIGUEL REYES,deceased.
8 138. Plaintiffs are entitled to punitive damages against MOUNTAIN CASCADE, and
9 DOES 51-100, and 151-250, inclusive, as corporate defendants because an officer, director or
10 managing agent thereof had advance knowledge of the unfitness of its employees(including but not
11 limited to Sean Ross,Gene lin,Greg Bent',David Bauer)and employed or retained them with a
12 conscious disregard of the rights or safety of others,authorized or ratified the wrongful conduct of
13 its agents,employees, representatives,independent contractors and DOES 51-100,and 151-250,
14 and each of them, who were acting as an officer, director or managing agent of MOUNTAIN
15 CASCADE,and DOES 51-100, and 151-250,inclusive,and which officer,director or managing
16 agent was personally guilty of oppression, fraud and/or malice. Among other things,an officer,
17 director or managing agent of MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,
18 ratified the conduct of its employees by continuing to employ them,failing to criticize, censure,
19 reprimand,terminate, suspend or take other remedial action against them,issuing press releases,
20 interfering with attempts of the regulatory agencies including Cal-OSHA to interview them,and
21 providing them with legal counsel so as to defend their conduct.
22 139. Despite full knowledge of the consistent pattern and practice of conduct by its
23 employees which led to numerous incidents involving workers safety and despite full awareness of
24 all dangers to human life and property associated with pipeline incidents,MOUNTAIN CASCADE,
25 and DOES 51400,and 151-250,inclusive,intentionally,deliberately and/or consciously failed to
26 improve, update, revise, or change its ineffective safety policies and practices, training of u .
27 employees,or employment of effective communication procedures,which led directly to its prior
28 incidents and the incident involving MIGUEL REYES,deceased. .
THIRD AMENDED COMPLAINT Page 45
1 140. The above-described conduct of MOUNTAIN CASCADE,and DOES 51-100,and
2 151-250, inclusive, which includes intentional and conscious disregard of safety standards and
3 acting in a manner calculated to stonewall and/or deceive regulatory authorities, for their own
4 financial benefit,was despicable and carried on with a willful and conscious disregard for the rights
5 and safety of others,including MIGUEL REYES,deceased.
6 WHEREFORE,Plaintiff LAURA REYES, as successor in interest to MIGUEL REYES,
7 deceased, prays judgment against MOUNTAIN CASCADE, and DOES 51-100, and 151-250,
8 inclusive,as hereinafter set forth.
9 NINTH CAUSE OF ACTION
10 WRONGFUL DEATH
I 1 AS AGAINST EBMUD,MOUNTAIN CASCADE,KMEP,SFPP,KMGP,KMI,
12 COMFORCE,CAROLLO,CDM,AND DOES 1-300 INCLUSIVE
13 (By Plaintiffs LAURA REYES,individually,MIGUEL REYES,JR.,ADRIAN REYES
14 and JAZMIN REYES,by and through their Guardian Ad Litem)
15 141. Plaintiffs, and each of them, incorporate each and every allegation contained in
16 paragraphs 1 through 140,above,as though fully set forth herein.
17 142. Plaintiff LAURA REYES, individually, is the sole surviving spouse of MIGUEL
18 REYES, deceased. Plaintiffs MIGUEL REYES, JR., individually, and ADRIAN REYES and
19 JAZMIN REYES, by and through their guardian ad litem, were the sole surviving children of
20 MIGUEL REYES,deceased.
21 143. As a direct and legal result of the carelessness, recklessness,negligence and gross
22 negligence of EBMUD, MOUNTAIN CASCADE, KMEP, SFPP, KMGP, KMI, COMFORCE,
23 CAROLLO, CDM, and DOES 1-300 inclusive, and each of them, MIGUEL REYES died on
24 November 9,2004.
25 144. Prior to the death of MIGUEL REYES,deceased,EBMUD,MOUNTAIN CASCADE,
26 KMEP,SFPP,KMGP,KMI,COMFORCE,CAROLLO,CDM,and DOES 1-300 inclusive,and
27 each of them,engaged in the conduct as alleged herein above.
28 ///
THIRD AMENDED COMPLAINT Page 46
1 145. Prior to the death of MIGUEL REYES,deceased,Plaintiffs,and each of them,lived
2 with MIGUEL REYES,deceased,and were dependent on him for their support and maintenance.
3 At all times prior to his death,MIGUEL REYES,deceased,was a faithful and dutiful husband to
4 LAURA REYES,and a dutiful father to MIGUEL REYES,JR.,ADRIAN REYES,and JAZMIN
5 REYES. Plaintiffs,and each of them,enjoyed the love,society,comfort,and attention of MIGUEL
6 REYES,deceased.
7 146. As a direct and proximate result of the conduct as alleged above by EBMUD,
8 MOUNTAIN CASCADE, KMEP, SFPP, KMGP, KMI, COMFORCE, CAROLLO, CDM, and
9 DOES 1-300 inclusive, and each of them, which proximately and directly caused the death of
10 MIGUEL REYES,deceased,Plaintiffs,and each of them,have sustained pecuniary loss and loss
11 of society, comfort, attention, services, love and support of MIGUEL REYES, deceased, in an
12 amount according to proof at trial.
13 147. As a further direct and proximate result of the conduct as alleged above by EBMUD,
14 MOUNTAIN CASCADE, KMEP, SFPP,KMGP, KMI, COMFORCE, CAROLLO, CDM, and
15 DOES 1-300 inclusive, and each of them, which proximately and directly caused the death of
16 MIGUEL REYES,deceased,Plaintiffs,and each of them,have incurred funeral and burial expenses,
17 in an amount according to proof at trial.
18 WHEREFORE, Plaintiffs LAURA REYES, individually, MIGUEL REYES, JR.,
19 individually,and ADRIAN REM and JAZMIN REYES,by and through their guardian ad litem,
20 individually, and each of them, pray for judgment against EBMUD, MOUNTAIN CASCADE,
21 KMEP,SFPP,KMGP,KMI,COMFORCE,CAROLLO,CDM,and DOES 1-300 inclusive,and
22 each of them,as hereinafter set forth.
23 PRAYER FOR RELIEF
24 WHEREFORE, Plaintiffs LAURA REYES, individually and as successor in interest to
25 MIGUEL REM, deceased, MIGUEL REM JR., individually, and ADRIAN REYES and
26 JAZMIN REYES,by and through their guardian ad litem,pray for judgment against all Defendants,
27 and each of them,as follows:
28
THIRD AMENDED COMPLAINT Page 47
1 1. For general damages in an amount to be proven at trial;
2 2. For special damages in an amount to be proven at trial;
3 3. For punitive and exemplary damages in an amount to be proven at trial and as requested
4 in this Third Amended Complaint;
5 4. For wrongful death damages in an amount to be proven at trial;
6 5. For costs of suit;and
7 6. For such other and further relief as the Court deems proper.
8
Dated: October 31,2005 LAW OFFICES OF DAVID F.BEACH,P.C.
9
10
11 By
DAVID F.BEACH
12 Attorneys for Plaintiffs LAURA REYES,
individually and as successor in interest to
13 MIGUEL REYES;ADRIAN REYES and JA2MIN
REYES,by and through their guardian ad litem,
14 MIGUEL REYES,JR.
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TIURD AMENDED COMPLAINT Page 48
1
2 PROOF OF SERVICE
3
I,the undersigned declare:
4.
I am a citizen of the United States of America,am over the age of eighteen(18)years and
5 not a party to the within action. I am an employee of the Law Offices of David F.Beach and my
address is 100 Stony Point Road,Suite 185,Santa Rosa,California 95401,which is located in the
6 County of Sonoma.
7 On the date stated below, I caused to be served in the manner indicated the following
document(s): AMENDED CASE MANAGEMENT STATEMENT on the parties involved
8 addressed as follows:
9
10 SEE ATTACHED SERVICE LIST
lI
12 XXX BY ELECTRONIC DELIVERY:On the date specified below,by or before 5:00 p.m.,I transmitted
from electronic notification address mschunbach@dfbeaehlaiv.com,a true copy of the above-referenced
13 documents(s)to OneLegal for electronic service..
14 BY PERSONAL DELIVERY:1 caused each such envelope to be delivered by hand to the offices of
each addressee above.
15
BY MAIL:1 caused each envelope,with postage thereon fully prepaid,to be placed in the United States
16 mail at Santa Rosa,California. I am readily familiar with the business practice for collection and processing
of mail in this office;that in the ordinary course of business said document would be deposited with the US
17 Postal Service in Santa Rosa on that same day. I understand that service shall be presumed invalid upon
motion of a party served if the postal cancellation date or postage meter date on the envelope is more than
18 one day after the date of deposit for mailing contained on this declaration.
19 BY FACSIMILE:By use of facsimile machine telephone number(707)547-1694,1 served a copy of the
within document on the interested parties at the facsimile numbers listed. The transmission was reported as
20 complete and without error.
21 BY OVERNIGHT DELIVERY: I caused each envelope, with delivery fees provided for, to be
deposited in a box regularly maintained by UPS or Federal Express. I am readily familiar with the Law
22 Offices ces of David F.Beach's practice for collection and processing of correspondence for overnight delivery.
and know that in the ordinary course of the Law Offices of David F.Beach's business practice the document(s)
23 described above will be deposited in a box or other facility regularly maintained by UPS or Federal Express
or delivered to an authorized courier or driver authorized by UPS or Federal Express to receive documents
24 on the same date that it is placed at the Law Offices of David F.Beach for collection.
25 1 declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct. Executed on October 31,2005,at Santa Rosa,California.
26
27
Monica Schupbach
28
THIRD AMENDED COMPLAINT Page 49
1 GAS PIPELINE EXPLOSION CASES
JUDICIAL COUNCIL COORDINATION PROCEEDING NO.:4433
2 SERVICE LIST
(Updated September 27,2005)
3
Attorneys for Victor Rodrigues(deceased) Attorneys jor Victor Rodrigues(deceased)
4 and Israel Hernandez(deceased) and Israel Hernandez(deceased)
John M.Anton,Esq. Antonio Ruiz,Esq.
5 William E.Lombardini,Esq. Concepcion E.Lozano-Batista,Esq.
Boxer&Gerson Weinberg,Roger&Rosenfeld
6 300 Frank H.Ogawa Plaza.Ste 500 1001 Marina Village Pkwy,Ste 200
Oakland,CA 94612 Alameda,CA 94501-1091
7 Tele: 510-835-8870 Tele: 510-337-1001
Fax: 510-835-0415 Fax: 510-337-1023
8
Attorneys for Jeremy Knox Attorneys jor Javier Ramos(deceased)
9 Peter J.McNulty,Esq. Mark C.Lieber,Esq.
McNulty Law Firm Steinbrecher&Associates
10 827 Moraga Drive 16830 Ventura Blvd.,Ste.B
Los Angeles,CA 90049 Encino,CA 91436
11 Tele: 310-471-2707 Tele: 818-528-7600
Fax: 310-472-7014 Fax: 818-528-7620
12
Attorneys jor Tae Chin"Gene"Im(deceased) Attorneys for Miguel Fuentes
13 James Larsen,Esq. Steven J.Brewer,Esq.
Gillin,Jacobson,Ellis&Larsen Gwilliam,Ivary,Chiosso,Cavalli&Brewer
14 2 Theatre Square,Ste.230 1999 Harrison Street,Ste. 1600
Orinda,CA 94563 Oakland,CA 94612
15 Tele: 925-253-5800 Tele: 510-832-5411
Fax: 925-253-5858 Fax: 510-832-1918
16
Attorneysfor Martin Topete Attorneys for Lien Claimant SCIF
17 Gregory W. Moreno,Esq. Karen L.Roberts,Esq.
Moreno,Becerra,Guerrero&Casillas State Compensation Insurance Fund
18 3500 W.Beverly Blvd. P.O.Box 12971
Montebello,CA 90640 Oakland,CA 94604-2971
19 Tele: 323-725-0917 2955 Peralta Oaks Court
Fax: 323-725-0350 Oakland,CA 94605-5398
20 Tele: 510-729-7830
Fax: 510-729-7874
21
Attorneys jor EBMUD Attorneys for Mountain Cascade
22 Craig Spencer,Esq. Ralph A.Zappala,Esq.
General Counsel,EBMUD Shawn A.Tolliver,Esq.
23 373 Eleventh St.(MS 904) Lewis,Brisbois,.Bisgaard&Smith
Oakland,CA 94623 One Sansome Street,le Fl.
24 Tele: 510-287-0174 San Francisco,CA 94111
Fax: 510-287-0162 Tele: 415-362-2580
25 Fax: 415-434-0882
Michael P.Verna,Esq. .
26 Bowels&Verna- Attorneys for Mountain Cascade
2121 N.California Blvd.,Suite 875 John W.Busby,II,Esq.
27 P.O.Box 8180 Attorney at Law
Walnut Creek,CA 94596-8180 1212 Broadway,10`"Floor
28 Tele: 925-935-3300 Oakland,CA 94612
THIRD AMENDED COMPLAINT Page 50
I Fax: 925-935-0371 Tele: 510465-2800
Fax: 510451-3002
2 Donald W.Carlson,Esq. Attorneys for Defendant Camp Dresser
Carlson,Calladine&Peterson LLP Michael J.Higginbothum,Esq.
3 353 Sacramento Street,16th Floor Long&Levit LLP
San Francisco,California 94111 465 California Street,5th Floor
4 Tele:415-391-3911 San Francisco,California 94104
Fax:415-391-3898 Tele:415-397-2222
5 Fax:415-397-6392
6
Attorneys for Kinder Morgan Attorneys for Modern Continental
7 William H.G.Norman,Esq. Bradford A.Nilsson,Esq.
Jill Rowe,Esq. John A.Foust,Esq.
8 Cooper,White&Cooper Thelen,Reid&Priest
201 California St., 17'Fl. 101 Second Street,Ste.1800
9 San Francisco,CA 94111 San Francisco,CA 94105
Tele: 415-433-1900 Tele: 415-371-1200
10 Fax: 415-433-5530 Fax: 415-371-1211
11
Attorneys for Comforce Corp Attorneys for Roger Paasch
12 Peter J.Linn,Esq. John Gomez
MURPHY PEARSON,BRADLEY&FEENEY McCLENNAN&GOMEZ
13 88 Kearny Street, 10"Floor 1144 State Street
San Francisco,CA 94108 San Diego,Ca 92101
14 Tele: 415-788-1900 Tele: 619-231-0505
Fax: 415-393-8087 Fax: 619-544-0540
15
16 Attorneys for Comforce Corp Attorneys for Roger Paasch
Dennis B.Kass,Esq. Philip M.Cohn
17 MANNING&MARDER,et al. LAW OFFICES OF PHILIP M.COHN
23rd Floor at Figueroa Tower 1550 Hotel Circle N.,Suite 170
18 660 South Figueroa St. San Diego,CA 92108
Los Angeles,CA 90017 Tele: 619-297-5100
19 Tele: 213-624-6900 Fax: 619-297-0028
Fax: 213-624-6999
20
21 Attorneys for Carrollo Engineers Attorneys for City of Walnut Creek
Robert C.Hendrickson,Esq Thomas G.Beatty,Esq.
22 HANCOCK,ROTHERT&BUNSHOFT McNamara,Dodge,Ney,Beatty
4 Embarcadero Center,3'Floor Pfalzer&Borges,LLP
23 San Francisco,CA 94111 1211Newell Avenue,POB 5288
Tele: 415-981-5550 Walnut Creek,CA 94596-1288
24 Fax: 415-955-2599 Tele: 925-939-0203
Fax: 925-939-5330
25
Chair,Judicial Council of California Presiding Judge of the Superior Court of California,
26 Administrative Office of the Courts County of Contra Costa
Attn:Appellate&Trial Court 825 Court Street
_ 27 Judicial Services(Civil Case Coordination) Martinez,CA 94553
455 Golden Gate Ave.
28 San Francisco,CA 94102
THIRD AMENDED COMPLAINT Page 51
1 Hon.Cecilia Castellanos,Dept 18
Alameda County Superior Court
2 County Administration Building
1221 Oak Street
3 Oakland,CA 94612
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THIRD AMENDED COMPLAINT Page 52
f�
SUIV DNS SUM-100
(CITACION JUDICIAL) FOR COURT USE ONLY
NOTICE TO DEFENDANT: (SOLO PAPA USO oeiAcoarer
(AVISO AL DEMANDADO):
AST BAY 'MUNICIPAL UTILITY DISTRICT.; KINDER MORGAN
ENERGY PARTNERS, L.P..; SFPP, L.L.P.; KINDER MORGAN,
INC. ; KINDER MORGAN G.P.., INC.; CAMP DRESSER :& MCKEE
INC. ; CAROLLO ENGINEERS; COMFORCE TECHNICAL SERVICES,
INC. and .DOES 1 through 300, inclusive,
YOU ARE BEING SUED BY PLAINTIFF:
.(LO ES-TA DEMANDANDO EL DEMANDANTE):
TORR.Y TAYLOR and YVETTE GASCA-TAYLOR
You hove:3Q CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have.a
copy served on:the plaintiff. A letter or phone call will not protect you.Your written response must be in proper legal form:if you,want the
court to hear your:case. There:may be a:court form that you can use for your response,You can find these court forms and more
Information at the California Courts Online Self-Help Center(wWW.courtinfo.ca.9pylselthelp);.your county.lawlibrary;:or the courthouse
nearest you.: If you cannot pay the filing fee,ask the court clerk fora fee waiver farm. If you do not file your response.on time,.you may
lose the case by default,and your wages;money,and property may be taken Without further warning from the.court
There.are other legal requirements.You.may want to call.ah attomby dobtaway.If.yom do not know an.attorney,you may want to call an
attorneyreferral service.if you cannot afford an attorney,you may beAlgible fbrfree legal services froma nonprofit.legal services
m
progra .You can:locate these nonprofit groups at the California Legal Services Web.site(Www:lawhelpcallfornia.org),the California.
Courts Online Self-Help Center(www.courtinfo.ca.g6vlaelfhe.1p),or by contacting:your:local court or county liar association.
Tiene 30 VIAS OE CALENDARIO despues de.qua to entregueii est&cfteclGn ypapeles legates pare.preserrtaruna;respuesta por escrito
en est&code y hacerque.se entregtie una copia al:demandante. Una corta.o una Ilamada telef8nka no to protegen. Su respuesta por
escrito bene que ester en formeto legal correcfo si desea que procesen su caso en:la corle: Es posibte que haya un fomieil4do que usted
puede usar para su respuesta. Puede encontrar estos foririulados de la eorte p ihhs informgci6n en ei Centro.de•Ayuda de las Cortes do
California(.www tour.tinfo.ca..gov%selfhelp✓espanQb7,an la biblioteca:do Jeyes de su condado a an 14 conteque le gdede rods cerca. Si no
puede pagar la cuota de presentacidn,Aida it/secreta#o de la conte.qua le dd un formularlo de exencidin de pago de cvotas, Sino present&
su respuesta a tiempo,puede perder:el vaso por incumplimlento.y 16 cdrte le podra quitarsu.supldo,;dinero y fifenes sin m6s advertencla.
Hay o(ros requishos legales: Es recomendable qua ilarn&A an abogaalo Mmediatamente. Woo Conoco a un a.0gado,;puede hamar a on
serviclo de reinisi6n a.abogados. Sl no puede.pagar a.un ab..ogadA as posible:que cumpla.con los:requisitds para..obtener servicios
legates gratuitos de un progroara de seivlcios)egales sin f!r►es de.lucro.Puede encontrar e$tos.grupos sin fines de intro en el.sitio web de
California Legal Services,(www.lawhelpcalifornia:org),an eCentro de Ayuda de las Cortes de California,
(www.courtinfo.ca,govlselfhelp/es anoll)o ponldndose an contacto eon to aorto o el tole gio de atiogados locales.
The name and address of:the.court is: CASE.&BER .5. — p 2 0 .
(El n0mbre y direccidn de.la torte es): (Ni MM del Cee
SUPERIOR COURT OF CALIFORNIA
725 Court Street
P.O. Box 911
Martinez, California 94553
The name,address,and telephone number of plaintiffs affomeye,or plaintiff without:ati attorney,is:
(El nombre;la direcci6n y el nrimero de toldfono del abogado del demandants,o del item. r►16 qua no tiene abogado,.es):
PETER 0. .H'IN:TON (9..•5 932:.-6.006 (.92.5): 932-3412
HI:NTON, ALPERT & SUMNER
1646 N. California Boulevard, Suite 660
walnut Creek, California 94596
DATE- pp'� Clerk, Deputy
Fecha lNOV _ ` 200
Secretario E Ad'4nto
(For proof of seroce of lhls.summons,use Proof of Service of'Sl irh.Mons(bt*PO$-010
(Para prueba de entrega.de esta citatidrl use el formulario Proof of Service of Summops,(POS7010)):
NOTICE TO THE.PERSON SERVED:You are se d
ISE^LI 1, ... as an individual defendant:
2. as the person sued under talo fictitious name of(specify):
_
3. % i on behalf of(specify);
under. f ` CCP 416.14(Corporation) CCP 416.6D.!(minor)
(.. CCP 416:20(defulicl coiporatiod) I CCP 416.70(conservatee)
,1 'Oq' CCP 416.40.(association orpartnership) 1 ........}CCP 416:90(authorized person
3 ^"
1 l�it �� . a'
other(speCif)r):
aa4��n,.. 4. .......,.:I by personal delivery on(date): rase t of t
Form Adopted for Mandatuy Use Code of Civil Procedure§§412:2D,465
,lk100 Council nulaq.1,nia
20 SUMMONS SU� rls-
SUI,A-t00(frau:January.t,20D41 s
J0- t��ot)rG38
f
CM-010
ATTORNEY OR PARTY WITHOUT ATTORNEY(Name,state bar number,and address): FOR COURT USE ONLY
PETER W. ALFERT, ESQ. (SBN 83139)
HINTON, ALFERT & SUMNER
1646 N. California Boulevard, Suite 600 I—�,, r�
Walnut Creek, California 94596 jr111 _
11 III��
TELEPHONE NO. (925) 932-6006 FAXNO.: (925) 932-3412
ATTORNEYFOR Name: Plaintiffs TORRY TAYLOR and YVETTE GAS -TAYLOR !!
SUPERIOR COURT OF CALIFORNIA,COUNTY OFCONTRA COSTA :InJ ;;�I i/ -�I Ir--) 1 S
STREETADDRESS'. 125 Court Street _ (�
MAILING ADDRESS: P.O. BOX 911 S
CITYANDZIPCODE: Martinez, California 94553
BRANCH NAME:
CASE NAME: Torry Taylor, et al. vs. East Bay Municipal
Utility District et al.
CIVIL CASE COVER SHEET Complex Case Designation IDS "V
'_.X..� Unlimited I _ Limited [_ 1 Counter [71 Joinder
(Amount (Amount Filed with first appearance by defendant JUDGE: Terence Bruniers
demanded demanded is
exceeds$25,000) $25,000 or less) (Cal.Rules of Court,rule 1811) DEPT.: 5
All five 5 items below must be completed see instructions on page 2).
1. Check one box below for the case type that best describes this case:
Auto Tort Contract Provisionally Complex Civil litigation
!Auto(22) [ Breach of contract/warranty(06) (Cal.Rules of Court,rules 1800-1812)
!Uninsured motorist(46) [ Collections(09) AntitrustlTrade regulation(03)
Other PUPD/WD(Personal Injury/Property
Insurance coverage(18) �.. ,Construction detect(10)
DaliTageNyrongtul Death)Tort
I Other contract(37) i_.X j Mass tort(40)
_.t Asbestos(04) Real Property I_.. .� Securities litigation(28)
[Product liability(24)
L �Eminent domain/inverse Environmental/Toxic tort(30)
-_-
I..._....I Medical malpractice(45) condemnation(14) [.-J Insurance coverage claims arising from the
[X�Other PI/PD/WD(23) r above listed provisionally complex case
Non-PI1PD/WD(Other)Tort _._�Wrongful eviction(33) types(41)
LEnforcement of Jutl�Other real property(28) ment
N
I...._ I Business tounfair business practice(07) 9
Civil rights(08) Unla-wful Detainer I j Enforcement of judgment(20)
Defamation13 [ ...7 Commercial(3 1)Defamation(13i Miscellaneous Civil Complaint
i Fraud(18) [__...]Residential(32)
Drugs(38) RICO(27)
iIntellectual property(19)
l --T E.Judicial Review E._.1 Other complaint(not specified above)(42)
1..._._t Professional negligence(25)
I �Other non-PI/PD1WD tort(35) [. Asset forfeiture(05) Miscellaneous Civil Petition
�_ ]Petition re:arbitration award(11) L! Partnership and corporate governance(2 1)
Employment petition specified above
( p )(Other not s 43)
j Wrongful termination(36) ( Writ of mandate(02) L J P
Other employment(15) L._J Other judicial review(39)
2. This case I-x i is __._] is not complex under rule 1800 of the California Rules of Court.if case is complex,mark the factors
requiring exceptional judicial management: _
a. ..x Large number of separately represented parties d. jr.._..� Large number of witnesses
b. :' .. Extensive motion practice raising difficult or novel e. ;-X Coordination with related actions pending in one or more courts
issues that will be time-consuming to resolve in other counties,states or countries,or in a federal court
c. F)P Substantial amount of documentary evidence f. ;_..__ Substantial post-judgment judicial supervision
3. Type of remedies sought(check ad that apply):
a• _X. i monetary b. = nonmonetary;declaratory or injunctive relief c. i_X.J punitive
4. Number of causes of action(specify): Neglig.; Strict Liab.-Ultra-Hazardou ctivity; Nillfull Mi cond.; LiO Cons.
5. This case �__....! is .}C. I is not a Gass action suit. y
Date: NOVEMBER 9, 2005 '
PETER W. ALFERT _
(TYPF OR PRINT NAMF1 (SIGNATURE OF PARTY N
NOTICE
e Plaintiff must file this cover sheet with the first paper filed in the action or proceeding(except small claises or cases filed
under the Probate,Family,or Welfare and Institutions Code).(Cal.Rules of Court,rule 201.8.) Failure41oi may result in
sanctions.
e File this cover sheet in addition to any cover sheet required by local court rule.
e If this case is complex under rule 1800 et seq.of the California Rules of Court,you must serve a copy of this cover sheet on all
other parties to the action or proceeding.
Form Unless
this isa cuse lex case this cover sheet shall be used for statistical purposes only. Page
-1812;
of 2
:
AdopledCIVIL CASE COVER SHEET 517.-G uks b court,rules 201.e,
Judicial Counci or calitornia _ Standards of Judicial Adminisuation•§19
CM-010[Rev.July 1,20031 SoNdkttus
l$
INSTRUCTIONS ON HOW TO COMPLETE THE COVER SHEET
To Plaintiffs and Others Filing First Papers
If you are filing a first paper(for example,a complaint)in a civil case,you must complete and file,along with your first paper,the Civil
Case Cover Sheet contained on page 1. This information will be used to compile statistics about the types and numbers of cases filed.
You must check all five items on the sheet. In item 1,you must check one box for the case type that best describes the case. If the
case fits both a general and a more specific type of case listed in item 1,check the more specific one. If the case has multiple causes
of action,check the box that best indicates the primary cause of action. To assist you in completing the sheet,examples of the cases
that belong under each case type in item 1 are provided below. A cover sheet must be filed only with your initial paper. You do not
need to submit a cover sheet with amended papers. Failure to rile a cover sheet with the first paper filed in a civil case may subject a
party,its counsel,or both to sanctions under rules 201.8(c)and 227 of the California Rules of Court.
To Parties in Complex Cases
In complex cases only,parties must also use the Civil Case Cover Sheet to designate whether the case is complex. If a plaintiff
believes the case is complex under rule 1800 of the California Rules of Court,this must be indicated by completing the appropriate
boxes in items 1 and 2. If a plaintiff designates a case as complex,the cover sheet must be served with the complaint on all parties to
the action. A defendant may file and serve no later than the time of its first appearance a joinder in the plaintiffs designation,a
counter-designation that the case is not complex,or,if the plaintiff has made no designation,a designation that the case is complex.
CASE TYPES AND EXAMPLES
Auto Tort Contract Provisionally Complex Civil
Auto(22)—Personal Injury/Property Breach of Contract/Warranty(06) Litigation(Cal.Rules of Court Rule
Damage/Wrongful Death Breach of Rental/Lease 1800-1812)
Uninsured Motorist(46)(if the Contract(not unlawful detainer Antitrust/Trade Regulation(03)
case involves an uninsured or wrongful eviction) Construction Defect(10)
motorist claim subject to Contract/Warranty Breach—Seller Claims Involving Mass Tort(40)
arbitration,check this item Plaintiff(not fraud or negligence) Securities Litigation(28)
Negligent Breach of Contract/instead ofAuto) Toxic Tort/Environmental(30)
Warranty Insurance Coverage Claims
Other Breach of Contract/Warranty g
Other PI/PDIWD(Personal Injury/ Collections(e.g.,money owed,open (arising from provisionally
Property Damage/Wrongful Death) book accounts)(09) complex case type listed above)
Tort Collection Case—Seller Plaintiff (41)
Asbestos(04) Other Promissory Note/Collections
Asbestos Property Damage Case Enforcement of Judgment
Asbestos Personal Injury/ Insurance Coverage(not provisionally Enforcement of Judgment(20)
Wrongful Death complex)(18) Abstract of Judgment(Out of
Product Liability(not asbestos or Auto Subrogation County)
toxidenvironmental)(24) Other Coveragge Confession of Judgment(non-
Medical Malpractice(45) Other Contract(37) domestic relations)
Medical Malpractice) Contractual Fraud Sister State Judgment
Other Contract Dispute Administrative Agency Award
Physicians 8 Surgeons
Other Professional Health Care Real Property (not unpaid faxes)
Malpractice P � PetitionlCertification of Entry of
P Eminent Domain/Inverse Judgment on Unpaid Tax
Other PI/PD/WD(23) Condemnation(14) Other Enforcement of Judgment
Premises Liability(e.g.,slip Wrongful Eviction(33) Case
and fall) Other Real Property(e.g quiet title)(26)
Intentional Bodily Injury/PD/WD Writ of Possession of Real Property Miscellaneous Civil Complaint
(e.g..assault,vandalism) Mortgage Foreclosure RICO(27)
Intentional Infliction of Quiet Title Other Complaint(not specified
Emotional Distress Other Real Property(not eminent above)(42)
Negligent Infliction of domain,landlord4enant,or Declaratory Relief Only
Emotional Distress foreclosure) Injunctive Relief Only(non-
Other PI/PD/WD Unlawful Detainer harassment)
Commercial(31) Mechanics Lien
Non-PI/PD/WD(Other)Tort Other Commercial Complaint
Residential(if
Case(non-tort/non-complex)
lex
Business Tort/Unfair Business Drugs(38)(if the case involves illegal p )
Practice(07) Other Civil Complaint
drugs,check this item;otherwise,
Civil Rights(e.g.,discrimination, (non-tort/non-complex)
false arrest)(not civil report as Commercial or
harassment)not Residential.) Miscellaneous Civil Petition
Partnership and Corporate
Defamation(e.g..slander,libel) Judicial Review Governance(21)
(13) Asset Forfeiture(05) Other Petition(not specified above)
Fraud(16) Petition Re:Arbitration Award(11) (43)
Intellectual Property(19) Writ of Mandate(02) Civil Harassment
Professional Negligence(25) Writ--Administrative Mandamus Workplace Violence
Legal Malpractice Writ—Mandamus on Limited Court Elder/Dependent Adult
Other Professional Malpractice Case Matter Abuse
(not medical or legal) Writ—Other Limited Court Case Election Contest
Other Non-PI/PD/WD Tort(35) Review Petition for Name Change
Employment Other Judicial Review(39) Petition for Relief from Late
Review of Health Officer Order Claim
Wrongful Termination(36) Notice of Appeal—Labor Other Civil Petition
Other Employment(15) Commissioner Appeals
CW010(Rev.,ulr,,20031 CIVIL CASE COVER SHEET °'B°2 of 2
I PETER J.HINTON,State Bar No. 36400
PETER W.ALFERT,State Bar No. 83139
2 ELISE R. SANGUINETTI,State Bar No. 191389
HINTON,ALFERT&SUMNER
3 1646 N. California Blvd.,Suite#/600
Walnut Creek,California 94596 S .
4 Telephone:(925)932-6006
5 Facsimile: (925)932-3412
MICHAEL J. APPEL,State Bar No. 56461 'Y
6 JOSEPH J.APPEL,State Bar No. 87778
LAW OFFICES OF APPEL&APPEL
7 One Walnut Creek Center
100 Pringle Avenue,Suite 730
8 Walnut Creek,CA 94596
Telephone: (925)938-2000
9 Facsimile: (925)938-2728
10 Attorneys for Plaintiffs
11 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 FOR THE COUNTY OF CONTRA COSTA
13
14 TORRY TAYLOR and YVETTE GASCA- Case NcC 05 - 02306
TAYLOR,
15
Plaintiffs,
16 V. COMPLAINT FOR DAMAGES
17
EAST BAY MUNICIPAL UTILITY
18 DISTRICT;KINDER MORGAN ENERGY
PARTNERS,L.P.; SFPP,L.L.P.;KINDER
19 MORGAN,INC.; KINDER MORGAN G.P., trial demanded
INC.;CAMP DRESSER&McKEE INC.; Jury
20 CAROLLO ENGINEERS;COMFORCE
21 TECHNICAL SERVICES,INC. and DOES 1
through 300,inclusive, PER LOCAL RULE 5 THIS
.22 Defendants. CASE IS ASSIGNED TO �S
DEPT
23
24
25
26
27
28
COMPLAINT FOR DAMAGES
1 PARTIES AND VENUE
2 Plaintiffs,and each of them,allege:
3 1. Plaintiff TORRY TAYLOR is,at all times mentioned herein was,a resident of the
4 County of Contra Costa,State of California.
5 2. Plaintiff YVETTE GASCA-TAYLOR is,and at all times mentioned herein was,a
6 resident of the County of Contra Costa,State of California.
7 3. Defendant EAST BAY MUNICIPAL UTILITY DISTRICT(hereinafter
8 "EBMUD")is,and at all times mentioned herein was,a publicly owned utility formed under the
9 Municipal District Act passed by the California Legislature in 1921. EBMUD maintains its
10 administrative and headquarters' offices and is situated in the City of Oakland,County of Alameda,
1 I State of California. EBMUD planned,designed,owned,supervised,controlled,and constructed a
12 public works construction project known as the Walnut Creek-San RamonValley Improvement
13 Project("Project,")which involved the installation of a water pipeline("EBMUD Pipeline.") The
14 route of the EBMUD Pipeline was to be generally parallel to,east of,and above a high-pressure
15 fuel pipeline system located in,among other places,the City of Walnut Creek,County of Contra
16 Costa, State of California("Kinder Pipeline.")The section of the Project and Kinder Pipeline at
17 issue in this complaint was located within downtown Walnut Creek,California in the direct
18 vicinity of business entities,a school,and residences. On or about May 6,2005,Plaintiffs,and
19 each of them,presented their claims to EBMUD pursuant to Government Code section.910. On or
20 about May 10,2005,EBMUD rejected the claims in their entirety.
21 4. Defendant KINDER MORGAN ENERGY PARTNERS,L.P.(hereinafter"KMEP")
22 is,and at all times mentioned herein was,a limited partnership duly organized and existing under
23 the laws of the State of Delaware,and qualified and doing business in the State of California.
24 KMEP is,and at all times relevant herein was,the designer,manufacturer,owner,operator,
25 manager,locator,field marker,monitor,and inspector of the Kinder Pipeline. KMEP is the largest
.26 independent owner/operator of products pipeline in the United States,transporting more than two
27 million barrels a day of gasoline,jet fuel and diesel fuel and up to 7.8 billion cubic feet a day of
28 natural gas liquids through more than 10,000 miles of pipelines,of which some 3,850 are in its
COMPLAINT FOR DAMAGES
I Pacific pipeline system. It is the largest publicly traded pipeline limited partnership in the United
2 States in terms of market capitalization.
3 5. Defendant SFPP,L.L.P. (hereinafter"SFPP")is,and at all times mentioned herein
4 was,a limited partnership duly organized and existing under the laws of the State of Delaware,and
5 qualified and doing business in the State of California. SFPP is,and at all times relevant hereiR
6 was,the designer,manufacturer,owner,operator,manager,locator, field marker,monitor,and
7 inspector of the Kinder Pipeline. SFPP is an operating partnership and subsidiary limited
8 partnership of KMEP.
9 6. Defendant KINDER MORGAN,INC.(hereinafter"KMI")is,and at all times
10 mentioned herein was,a corporation duly organized and existing under the laws of the State of
11 Kansas, and qualified and doing business in the State of California. KMI is,and at all times
12 relevant herein was,the designer,manufacturer,owner,operator,manager,locator, field marker,
13 monitor,and inspector of the Kinder Pipeline. KMI is one of the largest mid-stream energy
14 companies in the United States,owning and/or operating more than 35,000 miles of natural gas and
15 products pipeline.
16 7. Defendant KINDER MORGAN G.P.,INC. (hereinafter"KMGP")is,and at all
17 times mentioned herein was,a corporation duly organized and existing under the laws of the State
18 of Delaware,and qualified and doing business in the State of California as,among other things,the
19 general partner of KMEP. KMGP,is,among other things,the wholly owned subsidiary of KMI.
20 KMGP is,and at all times relevant herein was,the designer,manufacturer,owner,operator,
21 manager,locator,field marker,monitor,and inspector of the Kinder Pipeline.
22 8. Defendant CAMP DRESSER&McKEE INC. ("hereinafter"CDM")is,and at all
23 times mentioned herein was,a corporation duly organized and existing under the laws of the State
24 of Massachusetts,and qualified and doing business in the State of California. CDM entered into a
25 contract with,among others,EBMUD to,among other things,provide consulting,design and
26 related engineering services for the Project. CDM then entered into a subcontract with Defendant
27 CAROLLO ENGINEERS to,among other things,provide consulting,design and related
28 engineering services for the portion of the Project at issue in this lawsuit. (Plaintiffs will file the
COMPLAINT FOR DAMAGES
I required certificate of merit pursuant to Code of Civil Procedure section 411.35.)
2 9. Defendant CAROLLO ENGINEERS (hereinafter"CAROLLO")is, and at all times
3 mentioned herein was,a professional corporation duly organized and existing under the laws of the
4 State of Arizona,and qualified and doing business in the State of California. CAROLLO entered
5 into a subcontract agreement with CDM to,among other things,provide consulting,design and
6 related engineering services for the Project,the portion of which is at issue in this lawsuit.
7 (Plaintiffs will file the required certificate of merit pursuant to Code of Civil Procedure section
8 411.35.)
9 10. Defendant COMFORCE TECHNICAL SERVICES;IN.C.(hereinafter
10 "COMFORCE")is,and at all times mentioned herein was,a corporation duly organized and
1 I . existing under the laws of the State of Delaware,and qualified and doing business in the State of
12 California. COMFORCE is a provider of contingent staffing,information technology,consulting
13 and human resource outsourcing solutions. COMFORCE provided temporary staffing of pipeline
14 construction inspectors to and was hired by,among others,KMEP,SFPP,KMGP,and KMI,with
15 respect to the Project and Kinder Pipeline.
16 11. DOES 1-50, inclusive,and each of them,are,and at all times mentioned herein
17 were, individuals and/or business organizations form unknown that were engaged in the business of
18 planning,designing,owning, supervising,controlling and constructing the Project.
19 12. DOES 51-100,inclusive,and each of them,are,and at all times mentioned herein
20 were, individuals and/or business organizations form unknown that were engaged in the
21 construction,supervision,operation,and control of the Project as contractors or subcontractors
22 hired by EBMUD,and DOES 1-50.
23 13. DOES 101-150, inclusive,and each of them,are,and at all times mentioned herein
24 were, individuals and/or business organizations form unknown that designed,manufactured,sold,
25 owned,controlled,operated,maintained, inspected,distributed,transported,located,field marked,
26 monitored,and managed the Kinder Pipeline and/or contents therein.
27 14. DOES 151-200,inclusive,and each of them,are,and at all times mentioned herein
28 were, individuals and/or business organizations form unknown that were the owner(s)and/or
-3 -
COMPLAINT FOR DAMAGES
I bailee(s)of the backhoe vehicle which struck the Kinder Pipeline.
2 15. DOES 201-250, inclusive,and each of them,are,and at all times mentioned herein
3 were,individuals and/or business organizations form unknown that drove and/or operated the
4 backhoe vehicle which struck the Kinder Pipeline.
5 16. DOES 251-300, inclusive,and each of them,are,and at all times mentioned herein
6 were,individuals and/or business organizations form unknown that owned or controlled the real
7 property where the Project,EBMUD Pipeline,and Kinder Pipeline was located.
8 17. Plaintiffs,and all of them,are ignorant of the true names and/or capacities of
9 defendants sued herein as DOES 1-300,inclusive,and therefore sue these defendants by such
10 fictitious names. Plaintiffs will amend this complaint to allege their true names and capacities
I 1 when ascertained. Plaintiffs are informed and believe,and on that basis allege,that each of said
12 fictitiously named defendants is responsible in some manner for the occurrences herein alleged,
13 and that the injuries herein alleged were proximately caused by said their conduct.
14 18. Plaintiffs are informed and believe and on that basis allege that at all times
15 mentioned herein,each of the defendants was the agent and employee of each of the remaining
16 defendants,and in doing the things alleged in this complaint,was acting within the course and
17 scope of this agency and employment,with the knowledge,approval,consent and ratification of
18 each of the remaining defendants.
19 19. Plaintiffs are informed and believe,and thereon allege,that at all times relevant,
20. there exists,and has existed,a unity of interest and ownership between KMEP,SFPP,KMGP and
21 KMI,and DOES 101-150,and each of them.,such that any individuality and separateness between
22 the entities has ceased to exist. Upon information and belief,KMEP is the alter ego of KMGP,
23 SFPP,KMI, and DOES 101-150,and each of them. Upon information and belief,SFPP is the alter
24 ego of KMEP,KMGP,KMI,and DOES 101-150,and each of them.Upon information and belief,
25 KMGP is the alter ego of KMI,and DOES 101-150. Among other things,(a)KMEP was and is
26 completely controlled,dominated,managed and operated by KMGP and KMI,and DOES 101-150,
27 and each of them,(b)SFPP was and is completely controlled,dominated,managed and operated by
28 KMEP,KMGP,KMI and DOES 101-150,and each of them,(c)KMGP was and is completely
-4-
COMPLAINT FOR DAMAGES
I controlled,dominated, managed and operated by KMI,and DOES 101-150,and each of them,(d)
2 KMEP,SFPP,KMGP, KMI and DOES 101-150,and each of them,have permitted assets to be
3 transferred between themselves without adequate consideration,(e)KMEP,SFPP,KMGP,KMI
4 and DOES 101-150,and each of them,have disguised corporate profits in order to evade liability
5 and the payment of judgments,and(f)KMEP,SFPP,KMGP,KMI,and DOES 101-150,and each
6 of them,was and is inadequately capitalized. Adherence to the fiction of the separate existence of
7 KMEP,SFPP, KMGP,KMI and DOES 101-150,and each of them,would permit an abuse of the
8 corporate privilege and would sanction fraud or promote injustice because the entities,and each of
9 them,used in bad faith for the purpose of evading liability and as a means of allowing the other
10 entities,and each of them,to profit from their control and manipulation free from the claims of
11 Plaintiffs.
12 20. Because the incident causing injury to plaintiffs occurred in Walnut Creek,
13 California,venue is proper in the Superior Court of the State of California,County of Contra
14 Costa.
15 GENERAL ALLEGATIONS
16 21. Plaintiffs,and each of them,incorporate each and every allegation contained in
17 paragraphs 1 through 20 above,as though fully set forth herein.
18 22. EBMUD,and DOES 1-50,and each of them,planned,designed,owned,supervised,
19 controlled,and constructed the Project,which involved the installation of the EBMUD Pipeline.
20 EBMUD began the design of the Project in 2000. EBMUD entered into a contract with CDM for
21 CDM to,among other things,provide consulting,design and related engineering services for the
22 Project. CDM later entered into a subcontract with CAROLLO,whereby CAROLLO would,
23 among other things,provide consulting,design and related engineering services for the portion of
24 the Project which is at issue in the present lawsuit.
25 23. EBMUD's general contract was initially awarded on or about October of 2002 to
26 Modern Continental Construction Co.(hereinafter"Modern Continental"). In late 2002,the full
27 Kinder Pipeline was marked by a line rider employed by KMEP,SFPP, KMGP,KMI,
28 COMFORCE,and DOES 101-150,and each of them. The line rider was supposed to be using
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COMPLAINT FOR DAMAGES
I conductive locating equipment. The line rider marked the Kinder Pipeline by placing paint marks
2 and flags along the Kinder Pipeline,but failed to indicate a bend in the line at station 100+15
3 where an oak tree once stood.
4 24. Prior to beginning field work on the Project,a field meeting was held on or about
5 February 3,2003 between,among others,Modern Continental,EBMUD,KMEP,SFPP,KMI,
6 KMGP,COMFORCE,and DOES 1-150,and each of them. At the conclusion of the field meeting,
7 representatives of EBMUD,KMEP,SFPP,KMGP,KMI,COMFORCE,and DOES 1-150,and
8 each of them,walked the South Broadway portion of the Kinder Pipeline. No fresh field markings
9 were observed and no offsets were marked or pointed out by EBMUD,KMEP,SFPP,KMGP,
10 KMI,COMFORCE, and DOES 1-150,and each of them,around station 100+15. As of March of
11 2003,no field markings were visible around station 100+15.
12 25. In addition,in or about 2003 or 2004,Modern Continental was excavating for the
13 EBMUD Pipeline and Project,and determined that a segment of the Kinder Pipeline was
14 approximately 13 feet from where it had been field marked by KMEP,SFPP,KMGP,KMI,
15 COMFORCE,and DOES 101-150, and each of them. Modem Continental expressed this concern
16 to,among others,EBMUD,KMEP,SFPP,KMGP,KMI,and DOES 1-50,and 101-150,and each
17 of them. In addition,in or about August of 2003,EBMUD requested KMEP,SFPP,KMGP,KMI,
18 and DOES 101-150,and each of them,to relocate a section of the Kinder Pipeline because it was,
19 among other things,hard to locate and a hindrance to completion of-the-Project.,-In or about early
20 2004,Modem Continental,EBMUD,and DOES 1-50,and each of them,were extremely
21 concerned about the location of the Kinder Pipeline because it was still in the way of the
22 excavation for the EBMUD Pipeline and Project. Among others,Modem Continental,EBMUD,
23 KMEP,SFPP,KMGP,KMI,and DOES 1-50,and 101-150,and each of them,discussed in early
24 2003 the location of the Kinder Pipeline and how to continue working on the Project despite the
25 location of the Kinder Pipeline.
26 26. On or about May 28,2004,EBMUD issued a`.`Notice of Default Termination"to
27 Modern Continental.
28 27. After EBMUD terminated its general contract with Modern Continental,EBMUD,
6
COMPLAMT FOR DAMAGES
I and DOES 1-50,and each of them,contracted in August of 2004 with, among others,Mountain
2 Cascade Inc.(hereinafter"Mountain Cascade"),and each of them,to complete construction of the
3 Project. In compliance with the provisions of the Subletting and Subcontracting Fair Practices Act
4 of the Public Contract Code of the State of California,Mountain Cascade thereafter subcontracted
5 with,enlisted and employed,among others,Matamoros Pipeline, Inc. to,among other things,weld
6 together segments of the EBMUD Pipeline.
7 28. Prior to starting excavation,the EBMUD/Mountain Cascade contract required a
8 field meeting between EBMUD and Mountain Cascade. The meeting occurred on September 28,
9 2004 and was attended by representatives of EBMUD,Mountain Cascade,KMEP, SFPP,KMGP,
10 KMI,COMFORCE,and DOES 1-150,and each of them. At that meeting,the line rider employed
11 by KMEP,SFPP,KMGP, KMI,COMFORCE,and DOES 1-150,and each of them,represented
12 that the line markers were directly over the Kinder Pipeline and that the Kinder Pipeline ran
13 straight between the line markers. The attendees of the meeting walked the entire length of the
14 Kinder Pipeline using a 100-foot tape to show the location.of the proposed EBMUD Pipeline and
15 determine if there would be any interference with the Kinder Pipeline. Fieldwork commenced in
16 late September,2004 by which time Mountain Cascade had employed TORRY TAYLOR as an
17 underground laborer.
18 29. In or about October of 2004,benching for the trenching excavator in the area where
19 the offset took place. Mountain Cascade,and DOES 1-150,and each of them,benched over the
.20 offset at station 100+15. As of November 3 and 4,2004,there were no markings indicating the
21 offset.
22 30. On or about November 8,2004,a site meeting occurred which was required by
23 Mountain Cascade three days earlier,and attended by,among others,Mountain Cascade,KMEP,
24 SFPP,KMGP,KMI,COMFORCE,EBMUD,and DOES 1-150,and each of them. One of the
25 purposes of the meeting was to provide assurance that Mountain Cascade was excavating properly.
26 At the meeting,neither KMEP, SFPP,KMGP,KMI,COMFORCE,EBMUD,nor DOES 1-150,
27 and each of them,represented anything about the offset.
28 31. On or about November 9,2004,TORRY TAYLOR, was working within the course
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COMPLAINT FOR DAMAGES
I and scope of his employment at the Project located at South Broadway between Newell Avenue
2 and Rudgear Road in the City of Walnut Creek,County of Contra Costa,State of California,
3 performing underground labor work for his employer Mountain Cascade.
4 32. Near to where TORRY TAYLOR was working,a backhoe operator(Greg Berry)
5 excavated the trench in which the EBMUD Pipeline was being installed.
6 33. The Kinder Pipeline lay immediately adjacent to the EBMUD Pipeline trench. In
7 fact,there was a bend in the Kinder Pipeline at station 100+15,where the Kinder Pipeline veered
8 around the roots of an oak tree that once stood at that location.
9 34. As a result of the conduct of defendants,and each of them,herein,on or about
10 November 9,2004,a backhoe operator(Greg Berry),an employee of Mountain Cascade operated
11 the backhoe as to penetrate the Kinder Pipeline,causing the flammable material within to escape
12 and combine with welding sparks to cause an explosion. At the time of the explosion,TORRY
13 TAYLOR was working within a few yards from the source of the explosion. As a result of the
14 explosion,TORRY TAYLOR suffered,among other things,personal injury,unjustifiable and
15 substantial physical pain and mental suffering,and severe emotional distress.
16 35. Prior to November 9,2004,KMEP,SFPP, KMGP,KMI and DOES 101-150,and
17 each of them,experienced numerous incidents involving its pipelines,which resulted in,among
18 other things,personal injury or property damage. KMEP, SFPP,KMGP,KMI and DOES 101-150,
19 and each of them,own a 45%interest in the Cochin Pipeline System,a 1900-mile natural gas
20 liquids pipeline operating between Alberta and Ontario Canada,traversing through seven states in
21 the United States. On or about July I6,2003,the United States portions ofthe Cochin Pipeline
22 System experienced a rupture and fire at a rural location about 75 miles from Fargo,North Dakota.
23 36. Approximately.two weeks later on or about July 30,2003,a pipeline
24 owned/operated by KMEP, SFPP,KMGP,and KMI,and DOES 101-150,and each of them,broke
25 in a subdivision in Tucson,Arizona,spraying gasoline more than fifty feet into the air,saturating
26 five homes,and contaminating soil and groundwater.
27 37. On or about April 29,2004,a pipeline owned/operating by KMEP,SFPP,KMGP,
• 28 KMI and DOES 101-150,and each of them,which transported gasoline,jet fuel and diesel to
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COMPLAINT FOR DAMAGES
I Chico and Sacramento,California and Reno,Nevada experienced a rupture not discovered until
2 April 30,2004. As a result,approximately 1,000 barrels or 42,000 gallons of fuel spilled into
3 about 250 acres of Suisin Marsh,a wetland in Northern California. Criticized for the delayed
4 response,a managing agent of KMEP,SFPP,KMGP,KMI,and DOES 101-150,and each of them,
5 replied"You can't cry wolf every time you see an anomaly."
6 38. On or about November 22,2004,a pipeline owned/operated by KMEP,SFPP,
7 KMGP,KMI,and DOES 101-150,and each of them,transporting gasoline from Colton to
8 Barstow,California into Las Vegas,Nevada experienced a rupture in a rural area near Baker,
9 California. California Highway Patrol officers on nearby Interstate 15 noticed a strong odor and
10 closed the freeway,which led to the discovery of a fifty.to sixty foot gasoline vapor geyser. The
I I spokesman for KMEP, SFPP,KMGP,KMI,and DOES 51-150,and each of them, (Larry Pierce)
12 stated"it's not a significant financial impact to the company at all. It's more of an operational
13 issue."
14 39. 'On or about May 5,2005,California OSHA issued two Serious Willful Citations to
15 KMEP for violation of California Code of Regulations("CCR")sections 1541(b)(1)and 1511(b)
16 totaling$140,000;the evidence showed that KMEP committed an intentional and knowing
17 violation and KMEP was conscious of the fact that what it was doing constituted a violation, or
18 was aware that a hazardous condition existed and made no reasonable effort to eliminate the
19 hazard. OSHA also issued one Serious Citation to CAROLLO for violation of CCR section
20 1511(b)totaling $22,500 and one Serious Citation to EBMUD for violation of CCR section
21 1511(b)totaling $6,750;OSHA determined with respect to CAROLLO,Mountain Cascade,and
22 EBMUD,there was a substantial probability that death or serious physical harm could result from
23 the condition which existed or from the practices,operations or processes at the workplace.
24 FIRST CAUSE OF ACTION
25 (NEGLIGENCE)
26 AS AGAINST EBMUD AND DOES 1-50,INCLUSIVE
27 40. Plaintiffs incorporate each and every allegation contained in paragraphs 1 through
28 39 above,as though fully set forth herein.
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COMPLAINT FOR DAMAGES
1 41. At all times relevant herein,EBMUD, and DOES 1-50, inclusive,and each of them,
2 was engaged in the business of planning,designing,owning,supervising, controlling and
3 constructing the Project and the real property where the project was located. EBMUD had an
4 employee(s)or representative(s)at the Project site to exercise exclusive control and supervision of
5 the Project and the real property where the project was located,providing surveying control and
6 quality assurance. Because of the dangerous and ultra-hazardous nature of the Project,the Kinder
7 Pipeline and contents thereof,and the location of the Kinder Pipeline in the vicinity of the EBMUD
8 Pipeline and the Project,EBMUD and DOES 1-50,inclusive,and each of them,had a
9 nondelegable duty under,among other things,OSHA regulations and California statutes and
10 common law,to plan,design,own,supervise,control,survey,and construct the Project in a safe
11 manner to ensure the safety of the public and those working on the Project,including TORRY
12 TAYLOR.
13 42. At all relevant times herein,EBMUD and DOES 1-50,inclusive,and each of them,
14 . breached said nondelegable duty by,among other things:
15 negligently and carelessly and recklessly hiring KMEP,SFPP,KMGP,KMI,.
16 COMFORCE and DOES 51-150 and 201-250,and each of them,to perform the work on the
17 Project;given, among other things,their poor safety records;
18 • negligently and carelessly and recklessly supervising and exercising retained control
19 over KMEP,SFPP,KMGP,KMI,COMFORCE,CAROLLO,CDM,and DOES 51-150 and 201-
20 250, and each of them,in the performance of their work on the Project;
21 . negligently and carelessly and recklessly failing to correctly determine the location
22 of the Kinder Pipeline before allowing excavation in the area of the EBMUD Pipeline and Kinder
23 Pipeline. EBMUD was aware of the incursion of the Kinder Pipeline into the Project as evidenced
24 by the maps created by CAROLLO and CDM,and reviewed by EBMUD. EBMUD reviewed the
25 pot-holing data derived from the field and failed to address the missing data in the vicinity of the
26 offset and failed to request additional data.
27 . negligently and carelessly and recklessly pressuring and requiring Mountain
28 Cascade and DOES 5 1-100 and 201-250,and each of them,to complete their work on the Project
_ 10-
COMPLAINT FOR DAMAGES
I in a time frame that was not feasible without endangering the safety of the public and those
2 working on the Project, including TORRY TAYLOR;
3 .• negligently and carelessly and recklessly failing to create,obtain and/or analyze the
4 proper design maps and field marking data,prior to allowing excavation near the EBMUD Pipeline
5 and Kinder Pipeline;
6 negligently and carelessly and recklessly failing to obtain the proper permits and
7 other authority to allow for work to be completed in the vicinity of the Kinder Pipeline and
8 EBMUD Pipeline;
9 • negligently and carelessly and recklessly creating a dangerous condition of public
10 property by performing work,or allowing work to be performed on its behalf,on the Project in the
11 immediate vicinity of the Kinder Pipeline as opposed to another location in the City of Walnut
12. Creek,County of Contra Costa where the Kinder Pipeline was not located;
13 • negligently and carelessly and recklessly failing to require KMEP,SFPP,KMGP,
14 KMI,and DOES 101-150,and each of them, to relocate the Kinder Pipeline to a location away
15 from the immediate vicinity of the EBMUD Pipeline and Project;
I6 • negligently and carelessly and recklessly failing to notify Mountain Cascade and
17 DOES 51-100,and each of them, of concerns by other entities working on the Project or who
18 worked on the project(including among others Modern Continental,KMEP,SFPP,KMGP,KMI,
19 and DOES 51-150)regarding the location of the Kinder Pipeline to the vicinity of the EBMUD
20 Pipeline and Project;
21 • negligently and carelessly and recklessly failing to proceed,or requiring Mountain
22 Cascade,KMEP,SFPP,KMGP,KMI and DOES 51-150 and 201-250,and each of them,to
23 proceed with the work around the Kinder Pipeline and EBMUD Pipeline through safe and
24 acceptable means;
25 negligently and carelessly and recklessly failing to conduct,or requiring KMEP,
26 SFPP, KMGP,KMI and DOES 51-150,and each of them,to conduct,daily inspections by a
27 competent individual prior to the start of work and as needed throughout the shift for evidence of a
28 situation that could result in dangerous and ultra-hazardous condition,such as that which resulted .
- 11 -
COMPLAINT FOR DAMAGES
s
I in the injuries of TORRY TAYLOR; and
2 . negligently and carelessly and recklessly failing to remove,or requiring KMEP,
3 SFPP,KMGP,KMI and DOES 51-150,and each of them,to remove,individuals working on the
4 Project, including TORRY TAYLOR, from the dangerous and ultra-hazardous area until necessary
5 precautions had been taken to ensure the safety of those individuals,including TORRY TAYLOR.
6 43. EBMUD,and DOES 1-50, inclusive,and each of them,acted negligently,
7 carelessly,and recklessly so as to cause the personal injury of TORRY TAYLOR,and to legally
8 cause the injuries and damages described below.
9 44. EBMUD,and DOES 1-50,inclusive,and each of them,knew,or in the exercise of
10 reasonable care should have known,that the conditions constituted a extremely dangerous
I l condition and unreasonable risk of serious injury or death to those who would foreseeably be in the
12 vicinity of the Project or working on the Project,and that the danger would not be apparent to
13 persons such as TORRY TAYLOR. There was a substantial probability that death or serious
14 physical harm could result from the conditions. Under the circumstances of this case involving
15 excavation next to the high-pressure Kinder Pipeline,the conduct of EBMUD,and DOES 1-50,
16 inclusive,and each of them,was an extreme departure from the ordinary standard of conduct and
17 constitutes gross negligence.
18 45. As a direct and legal result of the negligence and/or gross negligence of EBMUD,
19 and DOES 1-50,inclusive, and each of them,TORRY TAYLOR suffered,among other things,
20 personal injury,unjustifiable and substantial physical pain and mental suffering,and severe
21 emotional distress.
22 WHEREFORE,Plaintiffs pray judgment against EBMUD,and DOES 1-50, inclusive,and
23 each of them,as hereinafter set forth.
24 SECOND CAUSE OF ACTION
25 (NEGLIGENCE)
26 AS AGAINST KMEP,SFPP,KMGP,KMI AND DOES 101-150,INCLUSIVE
27 46. Plaintiffs,and each of them,incorporate each and every allegation contained in
28 paragraphs 1 through 45 above,as though fully set forth herein.
- 12-
COMPLAINT FOR DAMAGES
1 47. At all times relevant herein,KMEP,as a limited partnership,SFPP,a limited
2 partnership and operating partnership of KMEP,KMGP as the general partner of KMEP, and KMI
3 as the parent corporation and owner of KMGP,and DOES 101-150, inclusive,and each of them,
4 were the owners and operators of the Kinder Pipeline,
5 48. Because.of the dangerous and ultra-hazardous nature of the Project and the Kinder
6 Pipeline,and the location of the Kinder Pipeline in the vicinity of the EBMUD Pipeline,KMEP,
7 SFPP,KMGP and KMI,and DOES 101-150, inclusive,and each of them,had a nondelegable duty
8 under,among other things,OSHA regulations and California statutes and common law,to own,
9 supervise,control,survey,and operate the Kinder Pipeline in a safe manner to ensure the safety of
10 the public and those working on the Project, including TORRY TAYLOR.
11 49. At all relevant times herein,KMEP, SFPP,KMGP,and KMI, and DOES 101-150,
12 inclusive,and each of them,breached said nondelegable duty by,among other things:
13 improperly hiring,training,retaining,and supervising its employees,agents,
14 representatives,and independent contractors,including COMFORCE,in the performance of the
15 work on the Kinder Pipeline in relation to the Project,including but not limited to the
16 determination of the location of the Kinder Pipeline before allowing the excavation and work in the
17 area of the EBMUD Pipeline and Kinder Pipeline;
18 . improperly failing to create,obtain and/or analyze the proper utility maps,plans and
19 drawings showing the location of the Kinder Pipeline,prior to allowing the excavation and work in
20 the area of the EBMUD Pipeline and Kinder Pipeline;
21 improperly failing to obtain the proper permits and other authority to allow for work
22 to be completed in the vicinity of the Kinder Pipeline and EBMUD Pipeline;
23 • improperly failing to locate and field mark the location of the Kinder Pipeline prior
24 to the excavation in violation of,among other things,Government Code section 4216.3;
25 • improperly failing to relocate the Kinder Pipeline to a location away from the
26 immediate vicinity of the Project and EBMUD Pipeline;
27 • improperly failing to address the concerns of entities working on the Project or who
28 worked on the project(including among others Modern Continental, EBMUD,and DOES 1-50,
- 13-
COMPLAINT FOR DAMAGES
I and each of them)regarding the location of the Kinder Pipeline to the vicinity of the EBMUD
2 Pipeline,and failing to inform Mountain Cascade of these concerns;
3 • improperly entering into a mutual agreement with EBMUD and DOES I A 00 and
4 201-250,and each of them,allowing the use of power-operated or power-driven excavating or
5 boring equipment within the vicinity of the Kinder Pipeline and Project;and
6 • improperly failing to inspect,or failing to inspect as frequently as necessary,the
7 Kinder Pipeline during work on the Project where,through contact with EBMUD and others
8 (including Modem Continental,EBMUD,and DOES 1-100,and each of them,)KMEP,SFPP,
9 KMGP and KMI,and DOES 101-150,and each of them,knew or should have known,that the
10 Kinder Pipeline could be damaged by excavation work for the Project.
11 50. The tortious conduct alleged above by KMEP,SFPP, KMGP,KMI,and DOES 101-
12 150,inclusive and each of them,was,among other things,negligent,careless,reckless,and grossly
13 negligent. Among other things, KMEP,SFPP,KMGP,KMI,and DOES 101-150, inclusive,and
14 each of them,was aware of the probable dangerous consequences of its conduct and failed to avoid
15 those consequences,which resulted in the personal injuries of TORRY TAYLOR.
16 51. KMEP,SFPP,KMGP,and KMI,and DOES 101-I50, inclusive,and each of them,
17 acted so as to cause the personal injury of TORRY TAYLOR,and to legally cause the injuries and
18 damages described below.
19 52. KMEP,SFPP,KMGP,and KMI,and DOES 101-150, inclusive,and each of them,
20 knew,or in the exercise of reasonable care should have known,that the conditions constituted an
21 extremely dangerous condition and unreasonable risk of serious injury or death to those who would
22 foreseeably be in the vicinity of or working on the Project,Kinder Pipeline or EBMUD Pipeline,
23 and that the danger would not be apparent to those persons,such as TORRY TAYLOR. KMEP,
24 SFPP,KMGP,KMI,and DOES 101-150,inclusive,and each of them,failed to avoid these
25 consequences or protect others,including TORRY TAYLOR, from these consequences. Under the
26 circumstances of this case involving excavation next to the high-pressure Kinder Pipeline,the
_. 27 conduct of KMEP,SFPP,KMGP,and KMI,and DOES.101-150,inclusive,and each of them,was
28 an extreme departure from the ordinary standard of conduct. _
- 14-
COMPLAINT FOR DAMAGES
1 53. As a direct and legal result of the alleged conduct of KMEP,SFPP,KMGP,and
2 KMI,and DOES 101-150,inclusive,and each of them,TORRY TAYLOR suffered,among other
3 things,personal injury,unjustifiable and substantial physical pain and mental suffering,and severe
4 emotional distress.
5 WHEREFORE,Plaintiffs pray judgment against KMEP,SFPP,KMGP,and KMI,and
6 DOES 101-150,inclusive,and each of them,as hereinafter set forth.
7 THIRD CAUSE OF ACTION
8 (NEGLIGENCE)
9 AS AGAINST COMFORCE AND DOES 101-150,INCLUSIVE
10 54. Plaintiffs,and each of them, incorporate each and every allegation contained in
I 1 paragraphs 1 through 53 above,as though fully set forth herein.
12 55. Because of the dangerous and ultrahazardous nature of the Project and the Kinder
13 Pipeline,and the location of the Kinder Pipeline in the vicinity of the EBMUD Pipeline,
14 COMFORCE,and DOES 101-150,inclusive,and each of them,had a non delegable duty under,
15 among other things, OSHA regulations and California statutes and common law,to own,supervise,
16 control,survey,and operate the Kinder Pipeline in a safe manner to ensure the safety of the public
17 and those working on the Project,including TORRY TAYLOR.
18 56. As a direct and legal result of the alleged conduct of COMFORCE,and DOES 101-
19 150,inclusive,and each of them,TORRY TAYLOR suffered,among other things,personal injury,
20 unjustifiable and substantial physical pain and mental suffering,and severe emotional distress.
21. 57. At all relevant times herein,COMFORCE,and DOES 101-150,inclusive,and each
22 of them,breached said nondelegable duty by,among other things:
23 • negligently and carelessly and recklessly hiring,training,retaining,and supervising
24 its employees,agents,representatives,and independent contractors in the performance of the work
25 on.the Kinder Pipeline in relation to the Project, including but not limited to the determination of
26 the location of the Kinder Pipeline before allowing the excavation and work in the area of the
27 EBMUD Pipeline and Kinder Pipeline;
28 • negligently and carelessly and recklessly failing to create,obtain and/or analyze the
- 15-
COMPLAINT FOR DAMAGES
I proper utility maps,plans and drawings showing the location of the Kinder Pipeline,prior to
2 allowing the excavation and work in the area of the EBMUD Pipeline and Kinder Pipeline;
3 • negligently and carelessly and recklessly failing to obtain the proper permits and
4 other authority to allow for work to be completed in the vicinity of the Kinder Pipeline and
5 EBMUD Pipeline;
6 • negligently and carelessly and recklessly failing to locate and field mark the location
.7 of the Kinder Pipeline prior to the excavation in violation of,among other things,Government
8 Code section 4216.3;and
9 • negligently and carelessly and recklessly failing to inspect,or failing to inspect as
10 frequently as necessary,the Kinder Pipeline during work on the Project where,through contact
11 with EBMUD and others(including Modem Continental Construction, EBMUD,and DOES 1-100,
12 and each of them,)COMFORCE and DOES 101-150,and each of them,knew or should have.
13 known,that the Kinder Pipeline could be damaged by excavation work for the Project.
14 58. As a direct and legal result of the alleged conduct of COMFORCE,and DOES 101-
15 150,inclusive,and each of them,TORRY TAYLOR,suffered unjustifiable and substantial
16 physical pain and mental suffering.
17 WHEREFORE,Plaintiffs pray judgment against COMFORCE,and DOES 101-150,
18 inclusive,and each of them,as hereinafter set forth.
19 FOURTH CAUSE OF ACTION
20 (NEGLIGENCE)
21 AS AGAINST CAROLLO AND CDM AND DOES 1-50,INCLUSIVE
22 59. Plaintiffs incorporate each and every allegation contained in paragraphs 1 through
23 58 above,as though fully set forth herein.
24 60. At all times relevant herein,CAROLLO and CDM,and DOES 1-50, inclusive,and
25 each of them,were engaged in the business of providing consulting,design and related engineering
26 services for the Project.CAROLLO and CDM,and DOES 1-50,inclusive,and each of them,
27 provided their drawings and plans to,among others,EBMUD.
28 61. Because of the dangerous and ultrahazardous nature of the Project,the Kinder
- 16-
COMPLAINT FOR DAMAGES
I Pipeline and contents thereof,and the location of the Kinder Pipeline in the vicinity of the EBMUD
2 Pipeline and the Project,CAROLLO and CDM,and DOES 1-50,inclusive,and each of them,had
3 a nondelegable duty under,among other things,OSHA regulations and California statutes and
4 common law,to plan and design the Project in a safe manner to ensure the safety of the public and
5 those working on the Project,including TORRY TAYLOR. .
6 62. At all relevant times herein,CAROLLO and CDM,and DOES 1-50,inclusive,and
7 each of them,breached said nondelegable duty by,among other things:
8 • improperly preparing and designing the plans and maps for the Project. CAROLLO
9 and CDM,and DOES 51-50,inclusive,and each of them,were aware of the incursion of the
10 Kinder Pipeline into the Project's path,as evidenced by their drawings;
11 improperly failing to evaluate the need for re-design of the Project at the time they,
12 and each of them,became aware of and discovered the proximity of the Kinder Pipeline to the
13 proposed EBMUD pipeline,and the incursion of the Kinder Pipeline into the Project;
14 improperly failing to address missing data or request additional data after reviewing
15 the pot-holing data derived from field data in the vicinity of station 100+15;
16 • with respect to CDM,and DOES 1-50,and each of them, improperly entering into a
17 subcontract with CAROLLO regarding the portion of the Project at issue in this lawsuit;and
18 • with respect to CDM and DOES 1-50,and each of them,improperly supervising
19 CAROLLO regarding its work on the portion of the Project at issue in this lawsuit.
20 63. The tortious conduct alleged above by CAROLLO and CDM,and DOES 1-50,
21 inclusive and each of them,was,among other things,negligent,careless,reckless,and grossly
22 negligent. Among other things,CAROLLO and CDM,and DOES 1-50,inclusive,and each of
23 them,was aware of the probable dangerous consequences of its conduct and failed to avoid those
24 consequences,which resulted the personal injury,unjustifiable and substantial physical pain and
25 mental suffering,and severe emotional distress of TORRY TAYLOR.
26 64. CAROLLO and CDM,and DOES 1-50, inclusive,and each of them,acted so as to
- . 27 cause the personal injury of TORRY TAYLOR,and to legally cause the injuries and damages
28 described below.
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COMPLAINT FOR DAMAGES
1 65. CAROLLO and CDM, and DOES 1-50,inclusive,and each of them,knew,or in the
2 exercise of reasonable care should have known,that the conditions constituted an extremely
3 dangerous condition and unreasonable risk of serious injury or death to those who would
4 foreseeably be in the vicinity of or working on the Project,Kinder Pipeline or EBMUD Pipeline,
5 and that the danger would not be apparent to those persons,such as TORRY TAYLOR.
6 CAROLLO and CDM,and DOES 1-50, 'inclusive,and each of them,failed to avoid these
7 consequences or protect others,including TORRY TAYLOR, from these consequences. Under the
8 circumstances of this case involving excavation next to the high-pressure Kinder Pipeline,the
9 conduct of CAROLLO and CDM,and DOES 1-50,inclusive,and each of them,was an extreme
10 departure from the ordinary standard of conduct.
11 66. As a direct and legal result of the alleged conduct of CAROLLO and CDM,and
12 DOES 1-50, inclusive, and each of them,TORRY TAYLOR suffered,among other things,
13 personal injury,unjustifiable and substantial physical pain and mental suffering,and severe
14 emotional distress.
15 WHEREFORE,Plaintiffs pray judgment against CAROLLO and CDM,and DOES 1-50,
16 inclusive,and each of them,as hereinafter set forth.
17 FIFTH CAUSE OF ACTION
18 (STRICT LIABILITY FOR ULTRA-HAZARDOUS ACTIVITY)
19 AS AGAINST KMEP,SFPP,KMGP,KMI,COMFORCE AND DOES 101-150,
20 INCLUSIVE
21 67. Plaintiffs,and each of them,incorporate each and every allegation contained in
22 paragraphs 1 through 66 above,as though fully set forth herein.
23 68. KMEP, SFPP,KMGP,KMI,and COMFORCE and DOES 101-150,inclusive,and
24 each of them,designed,manufactured,sold,owned,controlled,operated,maintained,inspected,
23 distributed,transported, located, field marked,monitored,and managed the Kinder Pipeline and
26 ultra-hazardous and flammable material contained therein.
_. 27 69. Such activities create the existence of a high degree of risk of harm.to persons,land
28 and personal property of others,create the likelihood that harm that results from it will be great,
- 18-
COMPLAINT FOR DAMAGES
I and are inappropriate to the surrounding of residential neighborhoods,schools and highly-
2 populated communities where it was carried on,such that their value to such communities is
3 outweighed by their dangerous attributes.
4 70. Because of the dangerous and ultrahazardous nature and condition of the Kinder
5 Pipeline and contents contained therein,and the location of the Kinder Pipeline in the vicinity of
6 the EBMUD Pipeline and Project,KMEP,SFPP,KMGP,KMI,and COMFORCE and DOES 101-
7 150,inclusive, and each of them,had a nondelegable duty to own,supervise,control,operate,
8 manage, locate,field mark,monitor,and inspect the Kinder Pipeline accurately and in a safe
9 manner to ensure the safety of the public and those working on the Project,including TORRY
10 TAYLOR.
11 71. As set forth above,TORRY TAYLOR sustained injuries while working on the
12' Project and EBMUD Pipeline. The activities of KMEP,SFPP,KMGP, KMI,and COMFORCE,
13 and DOES 101-150,and each of them,were a substantial factor in causing injury.to TORRY
14 TAYLOR. The harm to TORRY TAYLOR, was of the kind that would be anticipated as a result
15 of the risk created by owning,supervising,controlling,operating, managing, locating,field
16 marking, monitoring,and inspecting the Kinder Pipeline through a residential neighborhood,near a
17 school and through a highly-populated community..
18 72. KMEP,SFPP,KMGP,KMI,and COMFORCE,and DOES 101-150, inclusive,and
19 each of them,caused the personal injury of TORRY TAYLOR,and legally caused the injuries and
20 damages described below.
21 73. As a direct and legal result of the dangerous and ultra-hazardous conditions
22 designed,manufactured,sold,owned,controlled,operated,maintained, inspected,distributed,
23 transported ,located,field marked,monitored,and managed by KMEP,SFPP,KMGP,KMI,and
24 COMFORCE,and DOES 101-150,inclusive,and each of them,TORRY TAYLOR suffered,
25 among other things,personal injury,unjustifiable and substantial physical pain and mental
26 suffering,and severe emotional distress.
27 74. The above-alleged acts of KMEP,SFPP,KMGP,KMI,and COMFORCE,and
28 DOES 101-150,inclusive,and each of them,were willful,wanton,malicious,despicable,
19-
COMPLAINT FOR DAMAGES
I oppressive,and/or fraudulent,and justify an award of punitive damages. At all times mentioned
2 herein,KMEP, SFPP,KMGP,KMI,and COMFORCE,its employees, agents,representatives,
3 independent contractors, and DOES 101-150,inclusive,and each of them were guilty of malice,
4 oppression,fraud,and/or a willful and conscious disregard for the rights of TORRY TAYLOR.
5 Given the dangerous and ultrahazardous nature of the work performed on the Project,the Kinder
6 Pipeline,and the close proximity of the Kinder Pipeline to the EBMUD Pipeline,KMEP,SFPP,
7 KMGP,KMI,and COMFORCE,their agents,employees,independent contractors,representatives,
8 and DOES 101-150,inclusive,and each of them,performed work on the Project with a reckless
9 indifference and willful and conscious disregard for the rights of TORRY TAYLOR.
10 75. Plaintiff is entitled to punitive damages against KMEP,SFPP,KMGP,KMI;and
11 COMFORCE,and DOES 101-150,inclusive,and each of them,as corporate defendants because
12 an officer,director or managing agent thereof had advance knowledge of the unfitness of its
13 employees and employed or retained them with a conscious disregard of the rights or safety of
14 others,authorized or ratified the wrongful conduct of its agents,employees, representatives,
15 independent contractors who were acting as an officer,director or managing agent of KMEP,
16 SFPP,KMGP,KMI,and COMFORCE,and DOES 101-150,and each of them,and which officer,
17 director or managing agent was personally guilty of oppression, fraud and/or malice.
18 WHEREFORE,Plaintiffs pray judgment against KMEP;SFPP,KMGP,KMI,and
19 COMFORCE;and DOES 101-150, inclusive,and each of them,as hereinafter set forth.
20 SIXTH CAUSE OF ACTION
21 (WILLFUL MISCONDUCT)
22 AGAINST KMEP,SFPP,KMGP,KMI,COMFORCE AND DOES 51-150, INCLUSIVE
23 76. Plaintiff's,and each of them,incorporate each and every allegation contained in
24 paragraphs 1 through 75 above,as though fully set forth herein.
25 77. KMEP,SFPP,K.MGP,KMI,and COMFORCE,and DOES 51-150, and each of
26 them,knew that construction workers were excavating a trench in connection with the Project, in
- 27 accordance with the written contract between EBMUD and Mountain Cascade. KMEP,SFPP,
28 . KMGP,KMI,and COMFORCE,and DOES 51-150,and each of them,knew that the route of the
-20-
COMPLAMT FOR DAMAGES
I EBMUD Pipeline was to be parallel to,east of and above the Kinder Pipeline, which was owned
2 and operated by KMEP,SFPP,KMGP,KMI,and COMFORCE,and DOES 51-150,and each of
3 them.
4 78. KMEP,SFPP,KMGP,KMI,and COMFORCE, and DOES 51-150,and each of
5 them,were the operators or owners of a subsurface installation within the meaning of Government
6 Code section 4216.
7 79. KMEP, SFPP,KMGP,KMI,and COMFORCE,and DOES 51-150, and each of
8 them,knew that EBMUD's contract with Mountain Cascade,and each of them,required
9 compliance with all applicable statutes,laws,regulations,orders and standards.
10 80. KMEP,SFPP,KMGP,KMI,and COMFORCE,and DOES 51-150,and each of
1 l them,knew that to guard against extreme risk of injury to persons and property,including those
12 working on the Project such as TORRY TAYLOR,the contract between EBMUD and Mountain
13 Cascade,specified,among other things,that work along South Broadway in Walnut Creek,
14 California was adjacent to the Kinder Pipeline,that construction activities should be coordinated
15 with,among others,Larry Hosler,manager pipeline maintenance and Roy Bridge,manager
16 pipeline safety, for KMEP, SFPP,KMGP,KMI,and DOES 51-150.
17 81. KMEP,SFPP,KMGP,KMI,and COMFORCE,and DOES 51-150,and each of
18 them,knew that the Kinder Pipeline had to be properly located in advance of excavation to avoid
19 any physical contact with the Kinder Pipeline as a result of any construction activities.
20 82. KMEP,SFPP,KMGP,KMI,and COMFORCE,and DOES 51-150,and each of
21 them,were aware of their respective responsibilities under,among other things,the Government
22 Code and Code of Regulations to properly pian and design the Project and determine the location
23 of and properly field mark the Kinder Pipeline to allow for safe excavation in the vicinity thereof.
24 83. KMEP,SFPP,KMGP,KMI,and COMFORCE,and DOES 51-150,and each of
25 them,knew that operating,locating,field marking,and excavating in the vicinity of the Kinder
26 Pipeline created the existence of a special,high degree of risk of harm to persons and property.
27 KMEP,SFPP,KMGP,KMI,and COMFORCE,and DOES 51-150, and each of them,knew that
28 Matamoros Pipeline, Inc.,and its employees,were using welding instruments to weld the EBMUD
-21 -
COMPLAINT
21 -COMPLAINT FOR DAMAGES
I Pipeline,which considerably increased the extreme risk of harm due to highly flammable nature of
2 the contents of the Kinder Pipeline.
3 84. KMEP, SFPP,KMGP,KMI,and COMFORCE,and DOES 51-150,and each of
4 them,knew that those working on the Project,including TORRY TAYLOR,would rely on,among
5 others, KMEP,SFPP,KMGP,KMI,and COMFORCE, and DOES 51-150,and each of them, for
6 their safety to properly design,plan,locate, field mark,and excavate in the vicinity of the Kinder
7 Pipeline in compliance with state laws,statutes,orders,and regulations.
8 85. KMEP, SFPP,KMGP,KMI,and DOES 51-150,and each.of them,has experienced
9 several accidents relating to its pipelines,including but not limited to those incidents referenced in
10 the General Allegations set forth above. KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each
I 1 of them,have experienced at least 44 accidents relating to its pipelines since January I,2003. Of
12 these 44 accidents,at least 14 resulted in releases of more than five barrels of refined petroleum
13 products into the surrounding environment. At least 8 known accidents resulting in releases into
14 the surrounding environment have occurred since April 27,2004. All 8 of these accidents occurred
15 in or near high consequence areas(as defined in 49 C.F.R. section 195.450)and/or major
16 transportation corridors. Of these 8 accidents,5 are attributed to outside force damage(e.g. third
17 party damage caused by an excavator or other source,damage caused during construction, etc.) At
18 least 3 of these 5 instances went unaddressed by KMEP,SFPP, KMGP,KMI,and DOES 51-150,
19 and each of them, for an indeterminate period despite internal inspection tool runs conducted on the
20 pipelines prior to the accidents. Approximately 50%of reported hazardous liquid pipeline
21 accidents suffered by KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,between
22 1998 and 2003 were caused by outside forces.
23 86. According to the United States Department of Transportation's"Pipeline and
24 Hazardous Materials Safety Administration,"the recent accidents of KMEP,SFPP, KMGP,KMI,
25 and DOES 51-150,and each of them, indicate a`widespread failure to adequately detect and
26 address the effects of outside force damage and corrosion. This failure has systematically affected
_ 27 the integrity of the Pacific Operations Unit." This pattern and practice of KMEP;SFPP,KMGP,
28 KMI,and DOES 51-150,and each of them,is one to put profits over people,in that KMEP,SFPP,
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COMPLAINT FOR DAMAGES
I KMGP,KMI,and DOES 51-150,and each of them,believe that few adverse consequences will
2 result from its failures to avoid accidents involving the pipelines. This systematic failure flows
3 from the top on down through the corporate levels of KMEP,SFPP,KMGP,KMI,and DOES 51-
4 150,and each of them,and includes those decision making individuals including the officers,
5 directors and managing agents of KMEP,SFPP,KMGP, KMI,and DOES 51-150,and each of
6 them.
7 87. KMEP,SFPP, KMGP,KMI,and COMFORCE,and DOES 51-150,and each of
8 them,knew that the initial contract with EBMUD was awarded to Modern Continental,which
9 contract was terminated by EBMUD. KMEP,SFPP,KMGP,KMI,and COMFORCE,and DOES
10 51-150,and each of them,knew that in or about 2003 or 2004,Modern Continental was excavating
I 1 for the EBMUD Pipeline and determined that a segment of the Kinder Pipeline was approximately
12 13 feet from where it had been field marked by KMEP,SFPP,KMGP,KMI,and DOES 101-150,
13 and each of them. Modern Continental expressed this concern to,among others,EBMUD,KMEP,
14 SFPP,KMGP,KMI,COMFORCE,and DOES 1-50 and 101-150,and each of them. In addition,
15 in or about August of 2003,EBMUD requested that KMEP,SFPP,KMGP,KMI,and DOES 101-
16 150,and each of them,relocate a section of the Kinder Pipeline because it was,among other
17 things,hard to locate and a hindrance to completion of the Project. In or about early 2004,Modern .
18 Continental,EBMUD, and DOES 1-50,and each of them,were extremely concerned about the
19 location of the Kinder Pipeline because it was still in the way of the excavation for the EBMUD
20 Pipeline and Project. Among others,Modern Continental,EBMUD, KMEP,SFPP,KMGP,KMI,
21 and DOES 1-150,and each of them,discussed in early 2003 the location of the Kinder Pipeline and
22 how to continue working on the Project despite the location of the Kinder Pipeline.
23 88. Because of the construction work in the direct vicinity of the high pressure Kinder
24 Pipeline,KMEP,SFPP,KMGP,KMI,and COMFORCE,and DOES 51-150,and each of them,
25 knew that they had to guard against the extreme risk of injury to persons and/or property in the
26 area,including those persons working on the Project along with the general public. KMEP,SFPP,
27 KMGP,KMI,and COMFORCE,and DOES 51-150,and each of them,knew that construction
28 activities were to be coordinated with all parties participating in the Project.
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COMPLAINT FOR DAMAGES
1 89. KMEP,SFPP,KMGP,KMI,and COMFORCE,and DOES 51-150,and each of
2 them,knew of the peril of an explosion if the flammable liquids or gasses inside the Kinder
3 Pipeline escaped in the vicinity of the construction of the EBMUD Pipeline where workers worked
4 with welding tools. KMEP, SFPP,KMGP,KMI,and COMFORCE,and DOES 51-150,and each
5 of them,knew that injury to workers,such as TORRY TAYLOR,was a probable,as opposed to
6 possible,result of that danger.
7 90. At all relevant times herein,KMEP,SFPP,KMGP,KMI,and COMFORCE, and
8 DOES 51-150,and each of them,intentionally,knowingly,deliberately,and/or consciously failed
9 to avoid the above-referenced peril by,among other things:
10 • failing to train and supervise its employees,representatives,agents and independent
.11 contractors with respect to the performance of the work on the Project. For example,employees
12 lacked the experience and knowledge to read the maps and drawings showing the location of the
13 Kinder Pipeline,and in fact, failed to even review such maps and drawings. KMEP,SFPP,KMGP,
14 KMI,and COMFORCE,and DOES 51-150,andeach of them,failed to train and supervise its
1.5 employees,representatives,agents and independent contractors with respect to the importance of
16 reviewing and analyzing the necessary maps and drawings to determine the accurate location of the
17 Kinder Pipeline,and how to review and analyze such drawings and maps;
18 • failing to correctly determine the location of the Kinder Pipeline before allowing
19 excavation in the area of the EBMUD Pipeline and Kinder Pipeline,pursuant to,among other
20 things,Government Code section 4216.4. Among others,Mike Biggs,Peter Brooks,and Mark
21 Presley failed to review and analyze the maps and drawings,and instead relied on their visual
22 observation that there was no tree in the area of the Kinder Pipeline. In fact,the tree had been
23 removed years prior but the roots still existed and the offset of the Kinder Pipeline was present;
24 • failing to create,obtain and/or analyze the proper utility maps,plans and drawings
25 showing the location of the Kinder Pipeline,prior to allowing the excavation and work in the area
26 of the EBMUD Pipeline and Kinder Pipeline;
27 • failing to relocate the Kinder Pipeline to a location away from the immediate
28 vicinity of the Project and EBMUD Pipeline after concerns were previously brought forth by,
-24-
COMPLAINT FOR DAMAGES
I among others,EBMUD and Modern Continental regarding the location of the Kinder Pipeline to
2 the EBMUD Pipeline and Project.
3 . failing to address the concerns of entities working on the Project or who worked on
4 the project(including,among others,Modern Continental,EBMUD,and DOES 1-50,and each of
5 them)regarding the location of the Kinder Pipeline to the vicinity of the EBMUD Pipeline,and
6 failing to inform Mountain Cascade of these concerns;
7 . falsely representing to Mountain Cascade,EBMUD and others the location of the
8 Kinder Pipeline,such that Mike Biggs,Mark Presley and Peter Brooks stated to EBMUD,
9 Mountain Cascade,and others that the field marking was accurate,that excavators need only
10 follow the field marking devices to avoid conflict with the Kinder Pipeline and that additional
11 locating and monitoring was unnecessary. The Kinder Pipeline was not located where KMEP,
12 SFPP,KMGP,KMI,and DOES 51-150,and each of them,represented it to be. Further,KMEP,
13 SFPP,KMGP,KMI, and COMFORCE,and DOES 51-150,and each of them,failed to locate and
14 field mark the location which may be affected by the excavation to the extent and degree of
15 accuracy that the information was available either in their own records or through standard locating
16 techniques other than excavation. In fact,Mark Presley admitted that he often did not even use
17 drawings or maps,as he found them to be inaccurate. Mr.Presley stated that the Kinder Pipeline
18 only bent around tree roots,and since he saw no tree,the Kinder Pipeline did not deviate from a
19 straight path;and
20 falsely representing to Mountain Cascade,EBMUD and others that they employed
21 properly trained and supervised personnel to locate and field mark the Kinder Pipeline. Among
22 others,both Mike Biggs,Mark Presley and Peter Brooks lacked the skills and experience necessary
23 to accurately read and interpret drawings and maps,and to actually know that the reading of
24 drawings and maps was crucial to locating the Kinder Pipeline.
25 .91. The conduct alleged above by KMEP,.SFPP,KMGP,KMI,and COMFORCE,and
26 DOES 51-150, inclusive and each of them,was,among other things,despicable conduct being
27 carried on with a willful and conscious disregard of the rights and/or safety of others, including but
28 not limited to TORRY TAYLOR. Among other things,KMEP,SFPP,KMGP,KMI,and
-25-
COMPLAINT FOR DAMAGES
I COMFORCE,and DOES 101-150, inclusive,and each of them,was aware of the probable
2 dangerous consequences of its conduct and willfully and deliberately failed to avoid those
3 consequences,which resulted in the personal injuries of TORRY TAYLOR.
4 92. When KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them, made the
5 representations as set forth above,they knew them to be false,had no reasonable ground for
6 believing them to be true,and knew that they did not have the knowledge which they professed.
7 93. Although the representations were not made directly to TORRY TAYLOR,KMEP,
8 SFPP,KMGP,KMI,and DOES 51-150,and each of them,made the representations to Mountain
9 Cascade and others with the intent that such representations be relied upon in excavating the
10 EBMUD Pipeline.TORRY TAYLOR,is entitled to protection as he suffered physical injury
I 1 resulting from Mountain Cascade's and others justifiable reliance on the representations that the
12 Kinder Pipeline was properly marked. As a result,TORRY TAYLOR suffered,among other
13 things,personal injury,unjustifiable and substantial physical pain and mental suffering,and severe
14 emotional distress.
15 94. KMEP,SFPP,KMGP,KMI,and COMFORCE,and DOES 51-150, inclusive,and
16 each of them,knew,or in the exercise of reasonable care should have known,that the conditions
17 constituted an extremely dangerous condition and unreasonable risk of serious injury or death to
18 those who would foreseeably be in the vicinity of or working on the Project,Kinder Pipeline or
19 EBMUD Pipeline,and that the danger would not be apparent to those persons,such as TORRY
20 TAYLOR. KMEP,SFPP,KMGP,KMI,and COMFORCE, and DOES 51-150,inclusive,and each
21 of them,willfully and deliberately failed to avoid these consequences or protect others,including
22 TORRY TAYLOR, from these consequences. Under the circumstances of this case involving
23 excavation next to the high-pressure Kinder Pipeline,the conduct of KMEP,SFPP, KMGP,KMI,
24 and COMFORCE,and DOES 51-150,inclusive,and each of them,constitutes malice,oppression
25 and/or fraud.
26 95. As a direct and legal result of the alleged conduct of KMEP,SFPP,KMGP,KMI,
27 and COMFORCE,and-DOES 51-150,inclusive,and each of them,TORRY TAYLOR suffered,
28 among other things,personal injury,unjustifiable and substantial physical pain and mental
-26-
COMPLAINT FOR DAMAGES
I suffering,and severe emotional distress.
r
2 96. The above-alleged acts of KMEP, SFPP, KMGP,KMI, and COMFORCE,and
3 DOES 51-150,inclusive,and each of them,were willful,wanton,malicious, oppressive,
4 despicable,and/or fraudulent,and justify an award of punitive damages. At all times mentioned
5 herein,KMEP, SFPP, KMGP,KMI,and COMFORCE,their employees,agents,representatives,
6 independent contractors, and DOES 51-150,inclusive,and each of them were guilty of malice,
7 oppression,fraud,and/or a willful and conscious disregard for the rights of those working on the
8 EBMUD Pipeline,including TORRY TAYLOR. Given the dangerous and ultra-hazardous nature
9 of the work performed on the Project,the Kinder Pipeline,and the close proximity of the Kinder
10 Pipeline to the EBMUD Pipeline,the false representations and conduct of KMEP,SFPP,KMGP,
11 KMI,and COMFORCE,and DOES 51-150,and each of them,was despicable,malicious,
12 fraudulent,oppressive,and made with a conscious disregard for the safety of,among others,
13 TORRY TAYLOR.
14 97. Plaintiff is entitled to punitive damages against KMEP,SFPP,KMGP,KMI,and
15 COMFORCE,and DOES 51-150, inclusive,and each of them,as corporate defendants because an
16 officer,director or managing agent thereof had advance knowledge of the unfitness of its
17 employees,agents,representatives,or independent contractors(including but not limited to Mike
18 Biggs,Mark Presley and Peter Brooks)and employed or retained them with a conscious disregard
19 of the rights or safety of others,authorized or ratified the wrongful conduct of its agents,
20 employees, representatives,independent contractors and DOES 51-150,and each of them,who
21 were acting as an officer,director or managing agent of KMEP,SFPP,KMGP,KMI,and
22 COMFORCE,and DOES 5.1-150,and each of them,and which officer,director or managing agent
23 was personally guilty of oppression, fraud and/or malice. Among other things,an officer,director
24 or managing agent of KMEP,SFPP,KMGP,KMI,and COMFORCE,and DOES 51-150,and each
25 of them,ratified the conduct of its employees,agents,representatives or independent contractors by
26 continuing to employ them,failing to criticize,censure,reprimand,terminate,suspend or take other
27 remedial action against them,issuing press releases,interfering with attempts of the regulatory
28 agencies including Cal-OSHA to interview them,and providing them with legal counsel so as to
-27-
COMPLAINT FOR DAMAGES
I defend their conduct. Furthermore,a vice-president of operations and engineering of KMEP,
2 SFPP,KMGP, KMI,and DOES 51-150, inclusive,falsely stated in questions following the
3 incident that"the workers had been provided maps and should have been aware of the fuel
4 pipeline's location." The press release issued by KMEP,SFPP,KMGP,KMI,and DOES 51-150,
5 inclusive,dated November 10,2004 stated that defendants"do not expect this incident will have
6 significant adverse financial impact,"nor did it appear the incident"will require major
7 environmental clean-up."
8 98. Despite full knowledge of the consistent pattern and practice of conduct by its
9 employees,agents,representatives or independent contractors which led to regularly occurring
10 pipeline accidents,and despite full awareness of all dangers to human life and property associated
I 1 with pipeline incidents,KMEP,SFPP,KMGP,KMI,and COMFORCE,and DOES 51-150,
12 inclusive,intentionally,deliberately and/or consciously failed to improve,update,revise,or change
13 its ineffective safety policies and practices,training of employees,and communication within the
. 14 ranks of the corporation,which led directly to its prior incidents and the incident involving
15 TORRY TAYLOR.
16 99. The above-described conduct of KMEP,SFPP,KMGP,KMI, and COMFORCE,
17 and DOES 51-150,inclusive,which includes intentional and conscious disregard of safety
18 standards and acting in a manner calculated to stonewall and/or deceive regulatory authorities for
19 their own financial benefit was despicable and carried on with a willful and conscious disregard for
20 the rights and safety of others,including TORRY TAYLOR..
21 WHEREFORE,Plaintiffs pray judgment against KMEP,SFPP,KMGP,KMI,and
22 COMFORCE,and DOES 51-150, inclusive,and each of them,as hereinafter set forth.
23 SEVENTH CAUSE OF ACTION
24 (LOSS OF CONSORTIUM)
25 Plaintiff YVETTE GASCA-TAYLOR,complains of defendants,and each of them,and for
26 a Eighth Cause of Action,alleges:
27 100. Plaintiff YVETTE GASCA-TAYLOR realleges and incorporates herein by
28 reference each and every allegation contained in paragraphs one through 122 as though fully set
-28-
COMPLAINT FOR DAMAGES
I forth.
2 101. Plaintiff YVETTE GASCA-TAYLOR is,and at all times herein mentioned was,the
3 lawful wife of plaintiff TORRY TAYLOR.
4 102. As a direct and proximate of the aforesaid conduct of the defendants,and each of
5 them,plaintiff YVETTE GASCA-TAYLOR has suffered loss of support,services, love,
6 companionship,affection,society and other elements of consortium,all to her general damage in
7 an amount in excess of the jurisdictional minimum of this Court.
8 WHEREFORE plaintiffs pray judgment against defendants,and each of them,as
9 hereinafter set forth:
10 1. For general damages according to proof, in excess of the jurisdictional minimum of
I 1 this Court;
12 2. For damages for medical and related expenses,according to proof;
13 3. For damages for loss of earnings and earning capacity,according to proof;
14 4. For punitive damages against defendants KMEP,SFPP,KMGP,KMI,and
15 COMFORCE,and DOES 101-150,inclusive,and each of them;
16 4. For interest on all damages,as permitted by law;
17 5. For plaintiffs'costs of suit incurred herein;and
18 6. For such other and further relief as this Court deems just and proper.
19 •
20 DATED: November 9,2005 HINTO ERT&SUMNER
21 ? y �
22 By:
PETEWW.W.ALFERT
23 Attorneys for Plaintil s
24
25
26
- 27
28 .
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COMPLAINT FOR DAMAGES
15
OCT-24-2005(MON) 1430 KARPEL LAIC FIRM (FAX)818 461 1909 P.003/016
1 LA1NV OFFICES OF JER-ME'Y E.KARPBL
Jeffr &Karpel,Lasqq. (SBN:42286)
2 4515; hmnzan Oaks Avenue • 1�5
Sherman.Oaks CA 91403 , q,;� S •td f
3 Telephone: (,88 461-1919 F•`r~'
Facsimile: 81 461-1909 Li,f4 OCT- 20�
4
S Attorney for Plaintiff United Se a Automobile AssO
File Nambes:241,05 �; `
5
7 SUPFMOR COURT OF THE STATE OF CALIFORNIA,
8 COUNTY OF CONTRA COSTA,MARTINEZ DISTRICT .
sU; iTOpsl� p
10
11UNITED SERVICES AUTOMOBILE CASE NO41`X 0 5 02 12 8
ASSOCIATION,
12 Plaintiff,
13
vs. SUBROGATION COMPLAINT
14 EAST BAY MUNICIPAL UTILITIES FOR PROPERTY DAMAGE
15DISU CT yqm
a ovement entity; (1)Negligence
NI AIN CASCADE INC. a
36 California co oration kIDR (2)strict Liability
MORGAN EI�JERGY PIAR ERS, LIQ,a
17 California Limited Liability CoTt@ny, (3)Res Ipsa Loquitur
SFPP, LP, a Ca ornia mite Liability,
18 Company KINDERRI JORGAN G.P., (4)Negligence Per se
INC. • KINDER �0i�t, INC.'
. 19 MAPAMOROS P DELI CC In A Unlimited Civil Jurisdiction
Cal'?M1a corporation; CAXO�LO
20 EWG{NEERS a professional corporation Amount of Damages Exceed
which will do business in California s $25,000.00
21 CAROLLO ENGINEERS and DOE 1
through 100, Inclusive, Claimed Amount-$1,750,000.00
22
Defendant(s).
23
24 4URISDICTION.VENUE ANO PARTIES
25 1. The dalms herein aro asserted pursuant to CCP 410.10 and the jurisdiction of this
26 Court Is invoked pursuant to California Code of Civil Procedure,sections 394 and 395. The
27 acts that give rise to this suit occurred in Contra Costa County,State of California.
28 2. Plaintiff, UNITED SERVICES AUTOMOBILE ASSOCIATION, is an Insurance
i
COMPLAINT
3530SCAN-0521_000.m9x
OCT-24-2005(MON) 14:30 KARPEL LAW FIRM (FAX)818 461 1909 P.004/016
1 company qualified to do business in the State of California.
2 3. Plaintiff's insured,ENOS CHABOT,is an individual and a resident of the County
3 of Contra Costa,State of California. He owns the home insured by plaintiff United Services
4 Automobile Association,the damage done to which is the subject of this lawsuit.
5 4. Defendant EAST BAY MUNICIPAL UTILITIES DISTRICT(hereinafter"EBMUD-)Is,
6 and at all times herain mentioned was,a publicly owned utility formed under the Municipal
7 District Act passed by the California Legislature in 1921. EBMUD maintains-its administrative
s and headquarters offices and is situated in the City of Oakland,County of Alameda,State of
9 California. On or about April 1,2005,plaintiff presented its claims to ESMUD pursuant to
10 Government Code section 910. On or about April 14,2005 EBMUD rejected the claim in its
11 entirety.
12 S. Defendant,MOUNTAIN CASCADE.INC.,is,and at all time*herein mentioned was,
13 a corporation organized and existing underthe laws of the State of California and qualified to
14 conduct business In California with its registered principal place of business in the City of
15 Livermore in Alameda Cbunty.
16 S. Defendant,MATAMOROS PIPELINE,INC.,is,and at all times herein mentioned
17 was, a corporation organized and existing under the laws of the State of California and
18 qualified to conduct business in California with its registered principal place of business in the
19 City of Oakley in Contra Costa County. Defendant Mountain Cascade,Inc,subcontracted with
20 Matamoros Pipeline, Inc.to, among other things,well together segments of the EBMUD
21 Pipeline.
22 7. Defendant,CAROLLO ENGINEERS A PROFESSIONAL CORPORATION WHICH
23 WiLL DO BUSINESS IN CALIFORNIA AS CAROLLO ENGINEERS (hereinafter"Carollo
24 Engineers°), Is,and at all tunes herein mentioned was,a corporation organized and ekisting
25 under the laws of the State of California qualified to conduct business In California with its
26 registered principal place of business in the City of Walnut Creek in Contra Costa County.
27 6. Defendant,KINDER MORGAN ENERGY PARTNERS, is,and at all times herein
28 mentioned was,a corporation organized and existing underthe laws of the State of Delaware
2
COMPLAINT
3530sCAN-6521 000.max
OCT-24-2005(MON) 14:30 KARPR. LAW FIRM (FAX)818 461 1M P.005/016
1 and quallfted to conduct business In California with its registered principal place of business
2 in the City of Lancaster in Kem County,
3 9. Defendant, SFPP, LP.. is,and at all times herein mentioned was, a corporation
4 organized and existing under the laws of-the State of Delaware and qualified to conduct
5 business in California with its registered principal place of business In the City and County of
6 $memento. Defendant. SFPP,LP. Is an operating partnership and subsidiary limited
7 partnership of defendant Kinder,Morgan Energy Partners.
3 10. Defendant KINDER MORGAN G.P.,INC.(hereinafter"KMGP°) is,and at all times
9 hcrdin mentioned was,a corporation organized and existing under the laws of the State of
to Delaware and qualified to conduct business In California as,among other things,the general
I1 partner of KMEP. KMGP is,among other things,the wholly owned subsidiary of defendant
12 KINDER MORGAN.INC.
13 11. Defendant KINDER MORGAN.INC.(hereinafter"KMP)is.and at all times herein
14 mentioned was,a corporation organized and existing undor the laws of the State of Kansas
15 and qualified to conduct business in California. KMGP is the wholly-owned subsidiaryof KMi.
16 12. Plaintiff is informed and believes, and thereon alleges,that at all times relevant,
17 there exists,and has existed,a unity of interest and ownership between MEP,SFPP,KMGP
18 an DKIVII,and each of them,such that any Individuality and separateness betweenthe entities
19 has ceased to.exist, Upon information and belief,KMEP Is the alter ego of KMGP.SFPP and
20 KMI,and each of them. Upon information and belief,SFPP is the alter ego of KMGP,KMEP
21 and KMI,and each of them. Upon information and belief,KMGP is the alter ego of KMI.
22 13. The true names and capacities,whether individual,plural,corporate,associate or
23 otherwise of Defendants sued herein as Does 1 through 100, inclusive, are unknown to
24 Plaintiff who therefore sues said Defendants by such fictitious names,and Plaintiff will amend
25 this complaint to show the true names and capacities when the same has been ascertained.
26 14. Plaintiff is informed and believes and thereon alleges that at all times herein
27 mentioned, each of the Defendants was the agent, employee, bailee, lessee, licensee,
28 assignee and successor in interest of each of their co-defendants,and was acting within the
3
COMPLAINT
3530SCAN-0521_000.max
OCT-24-2005(MON) 14:30 KAFFR_ LAW FIRM (FAX)818 461 1909 P.006/016
1 scopeand purpose of said agency,service,employment,bellment lease,license.assignment,
2 and interest and with the consent, permission and knowledge of their co-defendants.
3
4 GENERAL ALLEGATIONS
5 15. Plaintiff hereby repeals and realleges paragraphs 1 through 14 of this complaint
6 and makes them a part of the instant cause of action as if fully set forth herein.
7 16. Under the provisions of Seclron 11580.2 etseq. of the Insurance Code of
8 California, Plaintiff insurance company has been subrogated to all rights of the designated
9 insureds against Defendants herein arising out of the subject incident to the full extent of the
10 payment made under the said policy; that said payments were made upon determination
11 within the meaning of'the policy and Section 11560.2 et.seq. of the Insurance Code. of
12 Califomia;further, payments were made after determination that the Insureds were legally
13 entitled to recover for property damage from the herein named Defendants on the basis of
14 their negligence.
is 17. Plaintiff's insured policy numberwas 408191.Enos N.Chabot the insured person
16 who claimed under the policy for property damage and Plaintiff Insurance company made
17 payments on said claim in the amount of$1,760,000.00 and herein sues for said amount
1 B 18.EBMUD planned,designed,owned,supervised,controlled and constructed a public
19 works construction project known as the Walnut Creek-San Ramon Valley Improvement
20 Project C13rojecrI,which involved the installation of a water pipeline("ESMUD Pipeline."j The
21 route of the EBMUD Pipeline was to be generally parallel to. east of, and above a high
22 pressure fuel pipeline system located In, among other places, the City of Walnut Creek,
23 1 County of Contra Costa,State of California('Kinder Pipeline.*)The section of the Pmject and
24 Kinder Pipelines at issue in -the complaint were located within downtown Walnut Creek,
25 .Cagfomla In the direct vicinity of business entities, a school and residences.
26 19. EBMUD hired, among others, MOUNTAIN CASCADE, INC.,as the general
27 contractor on the Project, and the events in issue occurred during the performance of a
28 contract entered Into In the County of Alameda,State of California. Defendant Mountain
4
COMPLNNT
3530SCAN-0521 000.ma C
OCT-24-2005(MON) 1430 KARPEL LAW FIFA (FAX)818 461 1909 P.007/016
I Cascade, inc. subcontracted with Matamoros Pipeline; Inc, to, among.other things.weld
2 together segments of the EBMUD Pipeline.
3 20. KMEP is,and at all times relevant herein was,the designer,manufacturer,owner,
4 operator,manager,locator,field marker,monitorand inspectorofa high-pressurefuelpipelfne
S system located in, among other places,the City of Walnut Creek, County of Contra Costa,
6 State of Catkfomia("Kinder Pipeline,°).
7 21. SFPP, L.C.is,and at all times relevant herein,was,the designer,manufacWrer,.
8 owner,operator,manager,locator,field marker,monitor and Inspector of the Kinder Pipeline.
9 22. On November 4,2004 defendant Mountain Cascade,inc.was excavating a trench
10 to install a water supply fine for defendant Fast Bay in the city of Walnut Creek in Contra
11 Costa County. The project was designed by defendant Carollo Engineers. At that time, an
12 backhoe operator under the direct supervision and control of EBMUD, Mountain Cascade,
13 Inc.,KMGP,KMi,and each of them,excavated the trench in which the E13MUD Pipeline was
14 being installed,
is 23. A burled underground plpeilne owned and operated by, among others,KMEP.
16 SFPP,KMGP and KMI,and each of them(°Knder Pipeline')lay immediately adjacent to the
17 EBMUD pipeline trench. The Kindor Pipeline was at all times an underground utility.
18 transporting flammable material,consisting of gasoline,diesel fuel and/or jet fuel.
19 24. On or about November 9.2004,Mountain Cascade,ina.so operated the backhoe
20 as to penetrate the Kinder Pipeline,causing the flammable material within to escape.Plaintiff
.21 Is informed and believes and thereon alleges,that the flammable material and byproducts that
22 escaped entered the EBMUD Pipeline where employees of defendant Matamoros Pipelines,
23 Inc., which was hired by defendant Mountain Cascade, Inc., were welding. Theirwelding
24 activities ignited the leaking petroleum which resulted in an explosion andfire which killed five
25 workers and ultimately set plaintiffs insured's residence on fire.
26 25. Plaintiff is informed and believes and thereon alleges that at the time of the
27 accident the location of the petroleum line was not known to the employees working on the
28 water supply pipeline. Plaintiff is informed and believes and thereon alleges that at the time
5
1
COMPLAIl Tr
3530SCAN-0521 000 max
OCT-24-2005(MON) 14:31 KARPEL LAIC FIFA (FAX)818 461 1909 P.008/016
I of the accident, ft location of the high pressure petroleum supply pipeline was known or
2 should have been known to defendants and each of them and that defendants and each of
3 them negligently failed to take action and did commit errors which resulted in the explosion
4 and fire which burned and damaged the insured's residence located at 2053 Doris Avenue,
5 Walnut Creek,Contra Costa County.
G
7 FIRST CAUSE OF ACTION
8 (Nealjgence AgainstlMI De ndantsl
g 26. Plaintiff hereby repeats and realleges paragraphs'I through 25 of this complaint
10 and makes them apart of the instant cause of action as if fully set forth heroin.
11 27. At all times relevant herein, EBMUD was engage4 in the business of planning,
12 designing,owning.supervising.controlling and constructing the project
13 28. At all times relevant herein,Mountain Cascade,Inc.was tha general contractor or
14 subcontractor hired by EBMUD for the Project and was engaged in the construction.
15 supervision,operation and control of the Projecl.
16 29. At all times relevant herein.KMEP,as a limited partnership,SFPP,L.C.,a limited
17 partnership and operating partnership of KMEP,KMGP as the general partnerof KMEP,and
18 KMl as the parent corporation and owner of KMGP,and each of them,were the owners and
19 operators of the Kinder Pipellne.
20 30. At all times relevant herein, Carollo Englneers.was engaged in-the business of
21 planning and designing the project
22 31. Because of the dangerous and ultra hazardous nature of the Project,the Kinder
23 Pipeline and contents thereof,and the location of the Kinder Pipeline in the vicinity of the
24 EBMUD Pipeline and the Project,all defendants.and each of them,had a non delegable duly
25 under,among other things,OSHAregulationsand Caliromiastatutes and common low toplan.
26 design,own,supervise,control,surrey and construct the Project in a safe manner to ensure
27. the safety of the public and those working on the Project.
28 32. Defendants,and each of them,knew,or in the exercise of reasonable care should
6
COMPLAINT
353oSCAN-0521 OOO.maz
f
OCT-2472005(MON) 1431 KARPEL LAW FIRM (FAX)818 461 1909 P.009/016
3 have known, that the conditions constituted an extremely dangerous condition and
2 unreasonable risk of serious injury or death to those who would foreseeably be In the vWnity
3 of the Project orworking on the Project,and that the danger would not be apparenttopersons
4 working at the scene. There was a substantial probability that death,serious physical harm
5 and/or extensive property damage could result from thecondltions. Under the circumstances
6of this case involving excavation nest to the high-pressure lender Pipeline,the conduct of
7defendants, and each of them,was an extreme departure fmrn the ordinary standard of
.8 conduct and constitutes gross negligence.
9 33. Plaintiff is informed and believes that as a direct and proximats result of the .
10negligence of the Defendants,and each ofthem.as aforessid.the Insured's residencelocated
11at 2053 Doris Avenue, Walnut Creek, Contra Coster County,was burned and damaged in
121value.
13 34. Prior to the tiling of the action, Plaintiffs insured herein assigned its property
14 damage deductibleto Plaintiffto include in its propertydamage claim the insureds deductible.
15 36. By reason of the foregaing allegations,Plaintiff Is entitled to and hereby prays for
16 Judgment for any and all prejudgment interest allowed pursuant to section 3287 and 3330 of
17 the Civil Code of Caiifomia,and any and all other interest allowed by law.
18
19 $ COND CAUSE Of ACTION
20 (Strict Lialbliity im1ort Against All Defendants)
21 .36. Plaintiff hereby repeats and realleges paragraphs 1 through 35 of this complaint
22 and makes them a part of the instant cause of action as if fully set forth herein.
23 37. Defendants..and each of them, were engaged in the business of planning.
24 designing,owning,supervising.controlling.constructing,supervision:operation,control ofthe
25 Project and the Kinder Pipeline.
26 38. Such activities create the existence of a high degree of risk of harm to persons,
27 land and personal property of others,create the likelihood that harm that results form itwill be
28 great,and are inappropriate to the surrounding residential neighborhoods where Rwas carried
7
COMPLAINT
3530SCAN-0521 OOO.max
i
OCT-24-2005(MOl) 14:31 KARPEL LAW FIRM (FAX)818 461 1909 P.010/016
1 on,such that the value to such neighborhoods is outweighed by their dangerous attributes.
2 39. Because of the dangerous and ultra hazardous nature and condition of the iQnder
3 Pipeline and contents contained therein,and the location of the Kinder Pipeline in the vicinity
4 of the ESMUD Pipeline and Project,defendants,and each of them,had a non delegable duty
5 to own,supervise,control,operate,manage,locate,field mark,monitorand inspectthe Kinder
6 Pipeline and EBMUD Pipeline and Project accurately and in a safe manner to ensure the
7 safety of the public.
8 40. As set forth above;plaintiffs insured's residence located at 2053 Dorls Avenue,
9 Walnut Creek,Contra Costa County,was burned and damaged In value. The activities of
10 defendants, and each of them, were a substantial factor in causing the damage to the
11 insured's residence located at 2053 Doris Avenue,Walnut Creek,Contra Costa County. He
12 harm to plaintiffs insured was of the kind that would be anticipated as a result of the risk
13 created by owning, supeMsing, controlling, operating, managing, locating, field marking,
14 monitoring and Inspecting the Kinder Pipeline and E13MUD Pipeline and Project through a
[� iS residential neighborhood.
16 41. Defendants,and each of them,caused the property damage to plaintiffs insured's
17 residence,and legally caused the property damage.
18 42. As a direct and legal result of the dangerous and ultra hazardous conditions
19 designed,manufactured,sold,owned,controlled,operated,maintained,Inspected,dWbuted,
24 transported,located,field marked,monitored and managed by defendants,and each ofthem,
21 -plaintiffs insured's residence located at 2053 Doris Avenue, Walnut Creek, Contra Costa
22 County,was bumed and damaged in value.
23 43. WHEREFORE,plaintiff prays judgment against defendants,and each of them,as
24 hereinafter set forth.
25
26 THIRD CAUSE OF ACTION
27 (Res IRsa L2guiUr Against All Defendants)
28 44. Plaintiff hereby repeats and realleges paragraphs 1 through 43 of this complaint
• - e
35303CAN-0521 OOO.man
OCT-24-20&(MON) 14:31 KARPEL LAW FIRM (FAX)818 461 1909 P.011/016
I and makes them a part of the instant cause of action as if fully set forth herein.
2 45. Defendants,and each of them,so carelessly,recklessly and negligently owned,
3 controlled,designed, planned, maintained, managed, inspected, constructed,locabd,field
4 marked, monitored and/or operated the Project, the EBMUD Pipeline and/or the Kinder
5 Pipeline as to case the property damage of plaintiffs insured.
6 45. Defendants,and each of them,had exclusive control,ownership,design,planning,
7 maintenance,management,inspection,construction or operation ofthe Project,the EBMUD
8 Pipeline and/or the Kinder Pipeline,and in the ordinary course of things plaintiffs insured's
9 residence located at2063 DoftAvenue,Walnut Creek,Contra Costa County,would not have
10 been burned and damaged in value if defendants,and each ofthem,had exercised ordinary
11 care in the maintenance, operation, ownership, design, planning, Inspection, control,field
12 marking,constructing,monitoring or management of the Project,the EBMUD Pipeline and/or
13 the Kinder pipeline as to case the property damage of plaintiffs insured.
14 47. Because defendants,and each of them, exercised exclusive control,ownership,
r1s design, planning, maintenance,.management, inspection, construction or operation of the
16 Project,the.EBMUD Pipeline andlorthe Kinder Pipeline,defendant's and each of them,wefe
17 in possession of superior,if not exclusive,access to information concerning the location of the
I8 Kinder Pipeline and the offset into the Project. The precise cause of the accident and
19 subsequent property damage to plaintiffs insured was not due to any voluntary action or
20 contribution on his part.
21 48. As a direct and legal result of the negligence and/or gross negligence of
22 defendants,and each of them.plaintiMs insured's residence was burned and damaged.
23 49. WHEREFORE,plaintiff prays judgment against defendants.and each of them,as
24 hereinafter set forth.
25 1111
26 III
2717/1
28 Ill
9
COMPLAINT '
3530SCAN-0521 000.mme
i
f
OCT-24-2005(MON) 14:31 KARPEL LAW FIM (FAX)818 481 1909 P.012/016
1 FOURTH C U•A SOF&aIOM
2 (Ne 111 ence Per Se Again§t KMgP. ESMUD. MountgIn Cascade. Inc.. and Carollo
3 Engineers
4 50. Plaintiff hereby repeats and realleges paragraphs 1 through 49 of this complaint
5 and makes them apart of the Instant cause of action as if fully set forth herein.
6 51, Plaintiff is informed and believes, and thereon alleges, that defendants KMEP,
7 EHMUD,Mountain Cascada,Inc.and Carollo violated of Cal-OSHA regulations as follows.
.8 52. Plaintiff is informed and believes,and thereon alleges,that defendant KMEP was
9 cited for falling to thoroughly survey the work site and assure that the Kinder Pipeline was
10 dearly marked.
11 53. Plaintiff Is infomwd and believes,and thereon alleges,that Defendant EBMUD
12was cited for failing to assure that the work 3ito was fully surveyed.
13 54. Plaintiff is Informed and believes,and thereon alleges,that defendant Mountain
14Cascade was cited for allegedly not taking safeguards to prevent the breach of the Kinder
151Pipeline.
16 55. Plaintiff is informed and believes, and thereon alleges,that defendant Carollo
17 Engineers was cited for failing to note the deviation In Om Kinder Pipeline.
18 56. Plaintiff is Uftnned and believes, and thereon alleges,that the above named
19 violation proximately caused plaintiffs insured's residence located at 2053 Doris Avenue,
20 Walnut Creek.Contra Costa County,was burned and damaged In value.
21 57. Plaintit'f Is informed and believes,and thereon alleges,that the violations alleged
22 above resulted from an explosion and fire that the relevant Cal-OSHA regulations were.
23 designed to prevent.
24 58. Plaintiff is informed and believes,and thereon alleges,that plaintiffs insured was.
25 one of the class of persons for whose protection the relevant Cal-OSHA regulations were
26 adopted.
27 WHEREFORE, Plaintiff prays for judgment against the Defendants and each of them
28 as follows:
10
COMPLAINT
3530SCAN-0521 000.max
I
OCT-24-2005(MOI) 14:31 KARPEL LM FIRM (FAX)818 481 1909 P.013/016
1 1. For property damage in the sum of$1,750,000.00.
2 2. For prejudgment interest allowed pursuant to section 3287 and 3330 of the Civit
3 Code of California,and any and all other interest allowed by law;
4 3. For costs of suit incurred herein;and
5 4..For such other and further relief as this court may deem just and proper.
6 DATED;September 25,2005
7 LAW OFFICES OF-JEFFREY E.KARPEL
8
9
10 BY;
Jeffrey 11. Unite Services Aut moble As oc for
12•
13
14
1$ •
16
17
18 •
19
20
21
22
23
24
25
26
27
r.05MMAW1L0ACon0* 1nsLwpdj
28
11
COMPLAINT
3530SCAN-0521_oDD.mmc
{
t
�b
I COOPER,WHITE&COOPER LLP
WILLIAM H. G.NORMAN(SBN 49942)
2 BARRY R.OGILBY(SBN 118133) 11-03-05
JILL B.ROWE(SBN 197713)
3 VIJAY K.TOKE(SBN 215079)
201 California Street, 17'h Floor K.TORRE,CLERK OF THE COURT
4 San Francisco,California 94111 SUPERIOR COURT OF CALIFORNIA
Telephone: (415)433-1900 COUNTY OF CONTRA COSTA-MARTINEZ
5 Facsimile: (415)433-5530 BY: S.HARBRECHT,DEPUTY CLERK
6 Attorneys for Defendants Kinder Morgan Energy
Partners,L.P.;Kinder Morgan G.P.,Inc.;Kinder
7 Morgan,Inc.; SFPP,LP
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF CONTRA COSTA
11
12 GAS PIPELINE EXPLOSION CASES CASE NO.Judicial Council Coordinated
Proceedings No.4433
13 Coordinated Actions:
KNOX,et al.v.MOUNTAIN CASCADE,et CROSS-COMPLAINT OF SFPP,L.P.,
14 al. (Contra Costa Sup. Ct. Case No. C 05- KINDER MORGAN,INC.,KINDER
. 00281);FARLEY v.MOUNTAIN MORGAN G.P.,INC.,and KINDER
15 CASCADE,et al.(Contra Costa Sup. Ct. Case MORGAN ENERGY PARTNERS L.P.
No.C 05-01573);REYES,et al.v.EAST AGAINST EAST BAY MUNICIPAL
16 BAY MUNICIPAL UTILITY DISTRICT,et UTILITY DISTRICT,MOUNTAIN
al.(Alameda Sup. Ct.Case No. RG-05- CASCADE,INC.,CAROLLO ENGINEERS,
17 207720);ARIAS,et al.v.KINDER CAMP DRESSER&McKEE,INC.,AND
MORGAN,et al.(Alameda Sup. Ct. Case No. ROES 1-250
18 RG-05-195567);ANGELES,et al.v.
KINDER MORGAN,et al.(Alameda Sup. Ct. Assigned to Hon.Terence L.Bruiniers
19 Case No.RG-05-195680) Dept.: 5
20
SFPP,L.P.,KINDER MORGAN,INC.,
21 KINDER MORGAN G.P.,INC.,and
KINDER MORGAN ENERGY PARTNERS
22 L.P.,
23 Cross-Complainants,
24 v.
25 EAST BAY MUNICIPAL UTILITY
DISTRICT,MOUNTAIN CASCADE,INC.,
26 CAROLLO ENGINEERS,CAMP DRESSER
&McKEE,INC.,AND ROES 1-250,
27
Cross-Defendants.
COOPER,WHITE 28
8 COOPER LLP
ATTOWEYS AT UW 530371.1 1
701 CALIFORNIA STREET
SAN1Fk.=CO,CA91111 CROSS-COMPLAINT
1 Cross-complainants SFPP,L.P.,KINDER MORGAN,INC.,KINDER MORGAN G.P.,
2 INC.,and KINDER MORGAN ENERGY PARTNERS L.P. (collectively"SFPP"or"Cross-
3 Complainants")allege as follows:
4 PARTIES AND VENUE
5 1. Cross-complainants are, and at all times mentioned herein were,business entities of
6 various different types,qualified and doing business in the State of California.
7 2. Cross-Complainant SFPP,L.P. is a named defendant in some or all of the actions
8 listed on Exhibit A. (The actions listed on Exhibit A are hereafter identified as the"Explosion
9 Lawsuits.")
10 3. Cross-Complainant Kinder Morgan,Inc. is a named defendant in some or all of the
11 actions listed on Exhibit A.
12 4. Cross-Complainant Kinder Morgan G.P.,Inc. is a named defendant in some or all
13 of the actions listed on Exhibit A.
14 5. Cross-Complainant Kinder Morgan Energy Partners L.P.is a named defendant in
15 some or all of the actions listed on Exhibit A.
16 6. Cross-Defendant EAST BAY MUNICIPAL UTILITY DISTRICT("EBMUD")is
17 and at all times herein was,a publicly owned utility formed under the Municipal District Act
18 passed by the California Legislature in 1921. EBMUD maintains its administrative and head
19 offices and is situated in the City of Oakland,California. EBMUD planned,designed,owned,
20 supervised,controlled,and constructed a public works construction project known as the Walnut
21 Creek-San Ramon Valley Improvement Project("Project")which involved the installation of a
22 water pipe line("EBMUD Pipeline.") The EBMUD Pipeline was to be generally parallel to,east
23 of and above a high-pressure fuel pipeline system located in,among other places,the City of
24 Walnut Creek,County of Contra Costa,California("SFPP Pipeline"). The section of the Project
25 and SFPP Pipeline at issue in this cross-complaint was located in Walnut Creek,California.
26 7. Cross-Defendant MOUNTAIN CASCADE INCORPORATED("MOUNTAIN
27 CASCADE")is,and at all times mentioned herein was,a corporation duly organized and existing
28 under the laws of the State of California. MOUNTAIN CASCADE is a pipeline contractor and
COOPER.WHITE 530371.1
6 COOPER LLP 2
ATTp(FOF ATIAW CROSS-COMPLAINT
CAISORMASTREET
' SWAN Fh/Jltl'JCO.U911/1
1 maintains its headquarters in the City of Livermore,County of Alameda,California. EBMUD
2 hired,among others,MOUNTAIN CASCADE as the general contractor on the Project,and the
3 events in issue occurred during the performance of the contract entered into in the County of
4 Alameda,California.
5 8. Cross-Defendant CAMP DRESSER&MCKEE,INC. ("CDM")is,and at all times
6 mentioned herein was,a corporation duly organized and existing under the laws of the State of
7 Massachusetts,and qualified and doing business in the State of California. CDM entered into a
8 contract with,among others,EBMUD to design the Project. CDM then entered into a subcontract
9 with Cross-Defendant CAROLLO ENGINEERS to design a portion of the Project at issue in this
10 lawsuit. Plaintiffs in the Arias,Angeles, and Im actions identified on Exhibit A have filed a
11 certificate of merit pursuant California Code of Civil Procedure section 411.35(6)(1). In addition,
12 Cross-Complainants are filing contemporaneously herewith a certificate pursuant to California
13 Code of Civil Procedure section 411.35(b)(2). Cross-Complainants will file a certificate pursuant
14 to California Code of Civil Procedure section 411.35(b)(1)within sixty days after filing this
15 complaint.
16 9. Cross-Defendant CAROLLO ENGINEERS ("CAROLLO")is,and at all times
17 mentioned herein was,a professional corporation duly organized and existing under the laws of
18 the State of Arizona,and qualified and doing business in the State of California. CAROLLO
19 entered into a subcontract agreement with CDM to design the Project,the portion of which is at
20 issue in this lawsuit. Plaintiffs in the Arias,Angeles, and Im actions identified on Exhibit A have
21 filed a certificate of merit pursuant California Code of Civil Procedure section 411.35(b)(1). In
22 addition,Cross-Complainants are filing contemporaneously herewith a certificate pursuant to
23 California Code of Civil Procedure section 411.35(b)(2). Cross-Complainants will file a
24 certificate pursuant to California Code of Civil Procedure section 411.35(b)(1)within sixty days
25 after filing this complaint.
26 10. Cross-Complainants,and all of them,are ignorant of the true names and/or
- 27 capacities of the Cross-Defendants sued herein as ROES 1-250, inclusive,and therefore sue these
28 Cross-Defendants by such fictitious names. Cross-Complainants will amend this Cross-Complaint
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1 to allege their true names and capacities when ascertained. Cross-complainants are informed and
2 believe,and on that basis allege,that each of said fictitiously named Cross-Defendants is
3 responsible in some manner for the occurrences and/or breaches herein alleged and/or otherwise
4 expressly contractually or equitably obligated to indemnify Cross-Complainants for the
5 occurrences herein alleged,in that Cross-Complainants'damages as herein alleged were
6 proximately caused by those Cross-Defendants. Each reference in this Cross-Complaint to
7 "Cross-Defendant,"Cross-Defendants," or a specifically named Cross-Defendant refers also to all
8 Cross-Defendants sued under fictitious names.
9 FACTUAL ALLEGATIONS
10 11. SFPP is informed and believes,and thereon alleges,that MOUNTAIN CASCADE
11 was retained by EBMUD to work on the Project. SFPP is further informed and believes,and
12 thereon alleges,that the Project was to run in close proximity to and conflict with the SFPP
13 Pipeline at certain locations,and in some locations was to cross the SFPP Pipeline.
14 12. EBMUD entered into a"Pipeline Inspection Agreement"with SFPP on or about
15 February 6,2003. Under the Pipeline Inspection Agreement,EBMUD agreed to pay SFPP for any
16 pipeline inspection costs associated with the Project. EBMUD further agreed to indemnify SFPP,
17 "its affiliates,and all of their employees,partners,agents, and representatives harmless[sic] from
18 and against any and all liability,claims,demands,damages,losses,or costs(including reasonable
19 attorneys'fees)of all kinds and character arising in any way out of EBMUD's construction in the
20 Project Area,except to the extent caused by SFPP's negligence or willful misconduct." A true and
21 correct copy of the Pipeline Inspection Agreement is attached as Exhibit B.
22 13. SFPP is informed and believes,and thereon alleges,that Cross-Defendants
23 knew and/or should have known the location of the SFPP Pipeline. Indeed,ground maps
24 indicating the precise location of the SFPP Pipeline were provided to Cross-Defendants.
25 Cross-Defendants knew and/or should have known of the warnings,maps,potholes and
26 other markings that defined the SFPP Pipeline's path.
27 14. In addition, SFPP is informed and believes, and thereon alleges, that MOUNTAIN
28 CASCADE was required to maintain a distance of at least five feet from the SFPP Pipeline. If
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1 MOUNTAIN CASCADE's construction, excavation, and/or installation activities were to occur
2 within five feet of the SFPP Pipeline, it was obligated to inform SFPP of the location in which
3 construction, excavation, and/or installation activities were taking place. If MOUNTAIN
4 CASCADE's construction,excavation,and/or installation activities were to conflict with the SFPP
5 Pipeline,it was obligated under state law to determine the exact location of the SFPP Pipeline by hand
6 digging.
7 15. MOUNTAIN CASCADE did not determine the exact location of the SFPP Pipeline or
8 hand dig,as it was obligated to do.
9 16. As a result, on November 9, 2004,MOUNTAIN CASCADE initiated construction,
10 excavation,and/or installation activities which conflicted with the SFPP Pipeline,without notifying
11 SFPP or locating the SFPP Pipeline or hand digging, and struck the SFPP Pipeline with heavy
12 machinery and/or equipment, which caused the SFPP Pipeline to rupture and trigger an explosion
13 ("Explosion").
14 17. Five individuals were killed, at least four individuals.were injured, and at least one
15 home and its contents were damaged.and/or destroyed as a result of the Explosion.
16 18. In addition,as a result of the Explosion,SFPP lost thousands of gallons of gasoline
17 and incurred significant monetary expense to,among other things,shut off the SFPP Pipeline in
18 various locations,drain residual gasoline from the SFPP Pipeline,and secure and repair the
19 ruptured SFPP Pipeline. SFPP also suffered revenue losses and labor costs caused when the SFPP
20 Pipeline was temporarily shut down to investigate and implement repairs. SFPP has further
21 suffered damages,or may potentially suffer damages, for liability,claims,demands,damages,
22 losses,and costs(including reasonable attorneys' fees),incurred as a result of any judgment or
23 damages award in the Explosion Lawsuits,as well as for any liability, fines,or other civil and
24 criminal penalties imposed by any governmental agency,whether federal or state,relating to any
25 investigation of the Explosion.
26 19. On or about March 21,2005,May 2,2005,August 2,2005,October 4,2005,
— 27 October 10,2005 and October 26,2005,Cross-Complainants served their timely claims to .
28 EBMUD pursuant to Government Code§ 910. These claims are attached as Exhibit C. On or
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I about May 4,2005,EBMUD rejected the claims served on March 21,2005 and May 2,2005.
2 These notices of rejection are attached as Exhibit D. No notice of rejection of the claim served on
3 August 2,2005 was delivered to SFPP,and accordingly that claim was deemed rejected by
4 operation of law on September 16,2005. No notice of rejection of the claim served on October 4,
5 2005 has been received,and if no such rejection is received by November 18,2005,the claim will
6 be deemed rejected by operation of law on that latter date. No notice of rejection of the claim
7 served on October 10,2005 has been received,and if no such rejection is received by November
8 24,2005,the claim will be deemed rejected by operation of law on that latter date. No notice of
9 rejection of the claim-served on October 26,2005,has been received,and if no such rejection is
10 received by December 10,2005,the claim will be deemed rejected by operation of law on that
11 latter date.
12 FIRST CAUSE OF ACTION
13 (Express Contractual Indemnity)
14 (By Cross-Complainants against East Bay Municipal Utility District)
15 20. SFPP reincorporates and references paragraphs 1 to 19 as if fully set forth herein.
16 21. EBMUD entered into a"Pipeline Inspection Agreement"with SFPP on or about
17 February 6,2003. Under the Pipeline Inspection Agreement,EBMUD agreed to pay SFPP for any
18 pipeline inspection costs associated with the Project. EBMUD further agreed to indemnify SFPP,
19 "its affiliates,and all of their employees,partners,agents,and representatives harmless[sic] from
20 and against any and all liability,claims,demands,damages,losses,or costs(including reasonable
21 attorneys'fees)of all kinds and character arising in any way out of EBMUD's construction in the
22 Project Area,except to the extent caused by SFPP's negligence or willful misconduct." The
23 plaintiffs in the Explosion Cases allege that SFPP is liable for damages arising out of EBMUD's
24 construction in the Project Area. EBMUD is therefore expressly contractually obligated to fully
25 indemnify SFPP and hold it harmless for any liability or other losses incurred as a result of the
26 Explosion,except to the extent caused by SFPP's negligence or willful misconduct.
27 22. SFPP has performed all its obligations under its contract with EBMUD.
28 23. SFPP was not negligent,nor did it engage in willful misconduct,with respect to the
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1 Project.
2 24. Cross-Complainants have incurred,and continue to incur,necessary and reasonable
3 attorneys'fees and other legal costs in prosecuting this action and in defending the Explosion
4. Lawsuits as well as responding and cooperating in investigations by federal and state agencies
5 relating to the Explosion. By the terms of the agreements between SFPP and EBMUD,SFPP is
6 entitled to recover these fees and costs from EBMUD. SFPP does not know the full amount
7 thereof at this time and will move to amend this Cross-Complaint to state the amount when it
8 becomes known to it,or on proof at trial thereof.
9 WHEREFORE,Cross-Complainants pray for judgment as hereinafter set forth.
10 SECOND CAUSE OF ACTION
11 (Equitable Indemnity)
12 (By Cross-Complainants against All Cross-Defendants)
13 25. SFPP reincorporates and references paragraphs 1 to 24 as if fully set forth herein.
14 26. Various individuals injured and heirs and spouses of individuals injured or killed in
15 the Explosion have filed actions seeking damages from SFPP in the Explosion Lawsuits.
16 27. Various federal and state agencies have investigated or are in the process of
17 investigating the Explosion and have the authority to issue censures,fines,or other civil and
18 criminal penalties to SFPP as a result of the investigations.
19 28. If the Explosion Lawsuit plaintiffs sustained damages as alleged in their
20 complaints,these damages were caused,entirely or in part,by Cross-Defendants as set forth
21 herein. Further,if the governmental agencies determine that violations of federal and state law
22 occurred,those violations were caused,entirely or in part,by Cross-Defendants as set forth herein.
23 29. SFPP is informed and believes,and thereon alleges,that MOUNTAIN CASCADE was
24 required to maintain a distance of at least five feet from the Pipeline. If MOUNTAIN CASCADE's
25 construction, excavation; and/or installation activities were to occur within five feet of the SFPP
26 Pipeline, it was obligated to inform SFPP of the location in which construction,excavation,and/or
27 installation activities were taking place. If MOUNTAIN CASCADE's construction, excavation,
28 and/or installation activities were to conflict with the SFPP Pipeline,it was obligated to determine the
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1 exact location of the SFPP Pipeline by hand digging.
2 30. SFPP is informed and believes,and thereon alleges,that MOUNTAIN CASCADE did
3 not determine the exact location of the SFPP Pipeline by hand digging as it was obligated to do.
4 31. As a result, on November 9, 2004,MOUNTAIN CASCADE initiated construction,
5 excavation,and/or installation activities which conflicted with the SFPP Pipeline,without notifying
6 SFPP or locating the SFPP Pipeline or hand digging, and struck the SFPP Pipeline with heavy
7 machinery and/or equipment,all of which Cross-Defendants knew or should have known and which
8 caused the SFPP Pipeline to rupture and triggered the Explosion.
9 32. In addition,MOUNTAIN CASCADE(1)failed to comply with California Government
10 Code section 4216.2 by failing to properly mark excavation areas with white paint; (2) failed to
11 comply with California Government Code section 4216.2 and 4216.3 by failing to make remarking
12 requests within two months prior to the accident,and indeed specifically requested no remarking;(3)
13 failed to comply with California Government Code section 4216.4 by digging in the area of the
14 rupture site with a backhoe,without having first exposed the pipeline by hand digging;(4)failed to
15 comply with California Government Code section 4216.3 by failing to notify Underground Service
16 Alert if there were no visible markings in the area;(5)failed to comply with California Government
17 Code section 4216.3 by failing to notify Underground Service Alert that SFPP,L.P.(allegedly)failed
18 to comply with the Call Before You Dig statute;(6)failed to read the maps in its own possession,
19 which clearly showed the precise location of the bend in the SFPP Pipeline where the rupture
20 occurred; (7) ignored its contractual obligations to verify the location of SFPP's pipeline before
21 excavating in the area of the rupture site; (8) failed to take proper safety precautions; and(8)was
22 otherwise actively and affirmatively careless and negligent in and about the Project.
23 33. EBMUD (1) fired MOUNTAIN CASCADE'S predecessor on the Project, Modem
24 Continental for delays,apparently in large part caused by Modem Continental's compliance with the
25 Call Before You Dig statute;(2)pressured Mountain Cascade to proceed quickly with the project;(3)
26 chose not to request remarking because it feared this would delay the Project;(4)had an inspector on
27 site at all times,who failed to read the maps in his possession,which showed the exact location of
28 SFPP's pipeline at the rupture site;(5)failed to ensure that MOUNTAIN CASCADE complied with
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1 its contract, including the requirement that MOUNTAIN CASCADE verify the location of SFPP's
2 pipeline before it. approached the eventual.rupture site; (6) failed to ensure that MOUNTAIN
3 CASCADE performed its contract in compliance with the Call Before You Dig statute;(7)failed to
4 deliver maps provided by SFPP showing the precise location of SFPP's pipeline to Mountain Cascade;
5 (8)negligently hired,retained and supervised MOUNTAIN CASCADE,CARROLLO and CDM;(9)
6 failed to take proper safety precautions;and(10)was otherwise actively and affirmatively careless and
7 negligent in and about the Project.
8 34. Cross-Defendants CDM and CAROLLO prepared plans for the Project. CDM and
9 CAROLLO also possessed detailed maps provided by SFPP that provided the exact location of the
10 SFPP Pipeline. CDM's and CAROLLO's plans did not adequately identify or take into account the
11 close proximity of the SFPP Pipeline to the EBMUD Pipeline. Further,CDM and CAROLLO
12 knew or should have known the location of the SFPP Pipeline and failed to deliver those maps and
13 failed to adequately warn MOUNTAIN CASCADE and others working on the Project about the
14 location of the SFPP Pipeline.
15 35. As a result of the Explosion,SFPP has suffered losses in the form of thousands of
16 gallons of gasoline and incurred significant monetary expense to,among other things,shut off the
17 SFPP Pipeline in various locations,drain residual gasoline from the SFPP Pipeline,and secure and
18 repair the ruptured SFPP Pipeline. SFPP also suffered revenue losses and labor costs caused when
19 the SFPP Pipeline was temporarily shut down to investigate and implement repairs. SFPP has
20 further suffered damages,or may potentially suffer damages,for liability,claims,demands,
21 damages, losses,and costs(including reasonable attorneys'fees),incurred as a result of any
22 judgment or damages award in the Explosion Lawsuits as well as for any liability,fines,or other
23 civil and criminal penalties imposed by any governmental agency,whether federal or state,
24 relating to any investigation of the Explosion.
25 36. Cross-Complainants did not commit any breach of contract,violate any statutes,
26 commit fraud or make misrepresentations,or cause or contribute to any other wrongful acts as
27 alleged in the pleadings in the Explosion Lawsuits and therefore deny any and all liability to the
28 Explosion Lawsuits plaintiffs. However,if liability is established,this liability will be due to the
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1 breach of an express or implied contractual duty owed by Cross-Defendants to Cross-
2 Complainants or a breach of a duty owed by Cross-Defendants directly to the Explosion Lawsuits
3 plaintiffs,and not because of any activities or fault on the part of Cross-Complainants.
4 37. Further,as between Cross-Complainants acid Cross-Defendants,responsibility,if
5 any,for the damages claimed by the Explosion Lawsuits plaintiffs and any censure,fines,or other
6 civil and criminal penalties assessed by federal or state agencies,rests entirely or partially on
7 Cross-Defendants,and each of them. As a result,Cross-Defendants are obligated to partially or
8 fully indemnify Cross-Complainants for any sums that Cross-Complainants may be compelled to
9 pay as a result of any damages,judgment,fines,or other awards or penalties recovered by the
10 Explosion Lawsuits plaintiffs or assessed by governmental agencies against Cross-Complainants.
11 38. Moreover,if the Explosion Lawsuits plaintiffs'damages are as alleged in their
12 complaints or any subsequent amended pleadings,the damages were primarily and actively caused
13 by Cross-Defendants breach of contractual or other duty to Cross-Complainants or breach of
14 contractual or other duty to the Explosion Lawsuits. Cross-Complainants are therefore entitled to
15 full or partial implied equitable indemnity from Cross-Defendants,and each of them.
16 39. Cross-Complainants have incurred,and continue to incur,necessary and reasonable
17 attorneys'fees and other legal costs in prosecuting this action and in defending the Explosion
18 Lawsuits as well as responding to and cooperating in investigations by federal and state agencies
19 into the Explosion. SFPP does not know the full amount thereof at this time and will move to
20 amend this Cross-Complaint to state the amount when it becomes known to it,or on proof at trial
21 thereof.
22 WHEREFORE,Cross-Complainants pray for judgment as hereinafter set forth.
23 THIRD CAUSE OF ACTION
24 (Negligence)
25 (By Cross-Complainants against All Cross-Defendants)
26 40. SFPP reincorporates and references paragraphs 1 to 39 as if fully set forth herein.
27 41. Cross-Defendants,and each of them,and their agents,representatives and
28 employees owe,and at all relevant times herein owed,SFPP a duty of reasonable care with respect
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1 to the construction,excavation and/or installation of the Water Pipeline. These duties include,but
2 are not limited to:
3 (a) MOUNTAIN CASCADE's duties to(1) comply with California Government Code
4 section 4216.2 by properly marking excavation areas with white paint; (2)comply with California
5 Government Code section 4216.2 and 4216.3 by making timely remarking requests;(3)comply with
6 California Government Code section 4216.4 by determining the exact location of the pipeline by hand
7 digging, and refraining from using any power-driven equipment; (4) comply with California
8 Government Code section 4216.3 by notifying Underground Service Alert if there were no visible
9 markings in the area; (5) comply with California Government Code section 4216.3 by notifying
10 Underground Service Alert if it believed that SFPP,L.P. failed to comply with the Call Before You
11 Dig statute;(6)read the maps in its own possession,which clearly showed the precise location of the
12 bend in the SFPP Pipeline where the rupture occurred;(7)comply with its contractual obligations to
13 verify the location of SFPP's pipeline before excavating in the area of the rupture site;and(8)take
14 proper safety precautions.
15 (b) EBMUD's duties to(1)refrain from firing MOUNTAIN CASCADE'S predecessor on
16 the Project,Modem Continental,for delays apparently in large part caused by Modem Continental's
17 compliance with the Call Before You Dig statute;(2)refrain from pressuring Mountain Cascade to
18 proceed quickly with the Project; (3) request that SFPP remark its pipeline; (4) have its on-site
19 inspector apply the standard of care,including reading the maps in his possession,which showed the
20 exact location of SFPP's pipeline at the rupture site; (5) ensure that MOUNTAIN CASCADE
21 complied with its contract, including the requirement that MOUNTAIN CASCADE verify the
22 location of SFPP's pipeline before it approached the eventual rupture site; (6) ensure that
23 MOUNTAIN CASCADE performed its contract in compliance with the Call Before You Dig statute;
24 (7) deliver maps provided by SFPP showing the precise location of SFPP's pipeline to Mountain
25 Cascade;(8)hire,retain and supervise qualified contractors,engineers,and architects;and(9)take
26 proper safety precautions.
27 (c) CDM and CAROLLO's duties to(1)prepare plans for the Project that adequately
28 identify and take into account the close proximity of the SFPP Pipeline to the EBMUD Pipeline;
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1 (2)deliver the maps in their possession that showed the precise location of SFPP's pipeline to
2 MOUNTAIN CASCADE and others working on the Project;(3)adequately warn MOUNTAIN
3 CASCADE and others working on the Project about the location of the SFPP Pipeline.
4 42. As a direct and proximate result of Cross-Defendants'breaches, SFPP's Pipeline
5 was ruptured,which caused SFPP to suffer,and continue to suffer,damages in excess of the
6 jurisdictional amount, including,but not limited to,lost revenue, lost product,loss of use of the
7 Pipeline,and costs to secure and repair the ruptured Pipeline.
8 FOURTH CAUSE OF ACTION
9 (Government Code§4216.7)
10 (By Cross-Complainants against MOUNTAIN CASCADE)
11 43. SFPP reincorporates and references paragraphs 1 to 42 as if fully set forth herein.
12 44. Pursuant to California Government Code section 4216.7,"where an excavator has
13 failed to comply with the notification requirements of Section 4216.2 and the requirements of
14 Section 4216.4,the excavator shall be liable for any claim for damages to the subsurface
15 installation arising from the excavation,by an owner or operator who has complied with the
16 requirements of Section 4216.1 and Section 4216.3,to the extent that the damage was proximately
17 caused by the excavator's failure to comply."
18 45. MOUNTAIN CASCADE failed to comply with the notification requirements of
19 Section 4216.2 and the requirements of Section 4216.4.
20 46. SFPP complied with the requirements of Section 4216.1 and 4216.3.
21 47. MOUNTAIN CASCADE's failure to comply with the notification requirements of
22 Section 4216.2 and the requirements of Section 4216.4 proximately caused damage to SFPP's
23 subsurface installation. Such damages are in excess of the jurisdictional amount,and include
24 without limitation lost revenue, lost product,loss of use of the Pipeline,and costs to secure and
25 repair the ruptured Pipeline.
26 PRAYER FOR RELIEF
27 WHEREFORE,Cross-Complainants pray for judgment against MOUNTAIN CASCADE,
28 CAROLLO,CDM,AND ROES 1-250 as follows:
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1 1. For indemnity,in an amount to be proven at trial,for:
2 a. any liability incurred in the Explosion Lawsuits. Cross-Complainants will
3 seek leave to amend this complaint to seek indemnity for additional lawsuits
4 if and when such lawsuits are filed;
5 b. any liability,fines,or other civil and criminal penalties imposed by any
6 governmental agency,whether federal or state,relating to any investigation
7 of the Explosion;
8 C. the loss of thousands of gallons of gasoline;
9 d. expenses to,among other things,shut off the SFPP Pipeline in various
10 locations,drain residual gasoline from the SFPP Pipeline,and secure and
11 repair the ruptured SFPP Pipeline;
12 e. revenue losses and labor costs caused when the SFPP Pipeline was
13 temporarily shut down to investigate and implement repairs.
14 2. For attorneys'fees and costs incurred in defending and resolving the Explosion
15 Lawsuits and any investigation for federal or state agencies relating to the Explosion in an amount
16 to be proved at trial;
17 3. For interest on all amounts owed subject to Cross-Defendants'express contractual
18 obligations to indemnify Cross-Complainants;
19 4. For attorneys'fees and costs of suit herein incurred;
20 5. For pre judgment interest;
21 6. For such other and fiuther relief as the Court may deem proper.
22
23 WHEREFORE,Cross-Complainants pray for judgment against EBMUD as follows:
24 1. For indemnity,in an amount to be proven at trial, for:
25 a. any liability incurred in the Knox,Arias,Angeles and Reyes lawsuits
26 identified on Exhibit A. Cross-Complainants will seek leave to amend this
27 complaint to seek indemnity for additional lawsuits after EBMUD has
28 rejected Cross-Complainants'claims for those lawsuits or after such claims
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1 have been deemed rejected by operation of law;
2 b. any liability,fines,or other civil and criminal penalties imposed by any
3 governmental agency,whether federal or state,relating to any investigation
4. of the Explosion;
5 C. the loss of thousands of gallons of gasoline;
6 d. expenses to,among other things,shut off the SFPP Pipeline in various
7 locations,drain residual gasoline from the SFPP Pipeline,and secure and
8 repair the ruptured SFPP Pipeline;
9 e. revenue Iosses and labor costs caused when the SFPP Pipeline was
10 temporarily shut down to investigate and implement repairs.
11 2. For attorneys'fees and costs incurred in defending and resolving the Explosion
12 Lawsuits and any investigation for federal or state agencies relating to the Explosion in an amount
13 to be proved at trial;
14 3. For interest on all amounts owed subject to Cross-Defendants'express contractual
15 obligations to indemnify Cross-Complainants;
16 4. For attorneys'fees and costs of suit herein incurred;
17 5. For pre judgment interest;
18 6. For such other and further relief as the Court may deem proper.
19
20 DATED:November 3,2005 COOPER,WHITE&COOPER LLP
21
22 By: /s/William H.G.Norman
William H.G,Norman(SBN 49942)
23 Attorneys for Defendants Kinder Morgan
Energy Partners,L.P.;Kinder Morgan G.P.,
24 Inc.;Kinder Morgan,Inc.; SFPP,LP
25
26
27
28
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Exhibit A
Lawsuits Filed in Connection With the Explosion
1. Knox v.Mountain Cascade, et al.,Contra Costa County Superior Court Case No.C-05-
00281,coordinated into the Gas Pipeline Explosion Cases,Judicial Council Coordinated
Proceedings*No.4433.
2. Arias v. Kinder Morgan, Incorporated, et al.,Alameda County Superior Court Case No.
RG-05-195567, coordinated into the Gas Pipeline Explosion Cases,Judicial Council
Coordinated Proceedings No.4433.
3. Angeles v"Kinder Morgan, Incorporated, et al., Alameda County Superior Court Case
No.RG-05-195680, coordinated into the Gas Pipeline Explosion Cases,Judicial Council
Coordinated Proceedings No.4433.
4. Reyes v.East Bay Municipal Utility District, et al.,Alameda County Superior Court Case
No.RG-05-207720, coordinated into the Gas Pipeline Explosion Cases,Judicial Council
Coordinated Proceedings No. 4433.
5. Farley v.Mountain Cascade,Inc., et al.,Contra Costa County Superior Court Case No.
C-05-01573, coordinated into the Gas Pipeline Explosion Cases,Judicial Council Coordinated
Proceedings No. 4433.
6. Ramos v.East Bay Municipal Utility District, et al.,Contra Costa County Superior Court
Case No.C-05-01840.
7. Im v. Kinder Morgan, Inc., et al.,coordinated into the Gas Pipeline Explosion Cases,
Judicial Council Coordinated Proceedings No.4433.
8. United Services Automobile Association,Contra Costa County Superior Court Case No.
C-05702128.
9. Paasch v. East Bay Municipal Utility District,Contra Costa County Superior Court Case
No.C-05-01844.
530361.1
a
PIPELINE INSPECTION AGREEMENT
3
This AGREEMENT is made and entered into this IC day of"nL4 .200J by
and between East Bay Municipal Utility District("EBIAW)and SFPP,L.P.,("SFPP")with
reference to the following facts:
A. EBMUD is planning to construct water transmission facilities referred to as the
Walnut Creek-San Ramon Valley Transmission Improvements Project that will impact SFPP's
pipeline easement(the"Project Area").
B. SFPP owns,operates and maintains a 10-inch petroleum product pipeline and
appurtenances within the'Project Area.
NOW,THEREFORE,in consideration of the terms and conditioirs contained herein, .
along with other good and valuable consideration,the sufficiency of which is hereby
acknowledged,SFPP and EBbM hereby agree as follows:
1. EBMUD shall notify SFPP at least 10 days prior to any construction activities in
the Project Area. Upon receiving proper notice,SFPP shall provide inspection services during
EBMUD's construction activities near the pipeline easement in the Project Area.
2. EBMUD shall pay SFPP the actual cost of pipeline inspection,estimated at$350
per day,plus a 19.4%markup for associated general and administrative overhead. SFPP
estimates that the total cost of the inspection services to be provided under this Agreement will
be,$37600.
3. EBMUD shall pay a deposit of$20,000 within 5 days after executing this
Agreement. SFPP will submit a monthly statement of the inspection services documenting,the
name of the inspector,date of inspection,hours worked,and salary rate.If the$20,000 deposit is
depleted,EBMUD will deposit the additional estimated amount of$17,600.When the final
accounting of the actual cost of the pipeline inspection services is completed,SFPP will submit
an itemized billing to EBMUD for review,together with an invoice for additional cost or SFPP's
check to reconcile any difference between the actual and the estimated cost. If the actual cost
was greater than the estimated cost,EBMUD shall pay SFPP any invoiced amount within 30
days after receiving such invoice from SFPP. SFPP shall maintain records for 3 years of the .
actual costs incurred and charged or allocated to the work in accordance with generally accepted
accounting principles.
4. EBMUD shall indemnify,defend,and save SFPP,its affiliates,and all of their
employees,partners,agents,and representatives harmless from and against any and all liability,
claims,demands,damages,losses or costs(including reasonable attorneys'fees)of all kinds and
character:arising in any way out of EBMUD's construction in the Project Area,except to the .l
extent caused by SFPP's negligence or willful misconduct.SFPP shall indemnify,defend,and
save EBMUD and all of its employees,partners,agents,directors,and representatives harmless j
from and against any and all liability,claims,demands,damages,losses or costs(including
reasonable attorneys'fees)of all kinds and character arising in any way out of SFPP's
negligence,or willful misconduct and relating in any way to the Project Area,except to the
extent caused by EBMUD's negligence or willful misconduct.
j
{i
f
S. This Agreement contains the entire agreement between EBMUD and SFPP
with respect to payment to SFPP for pipeline inspection services within
the Project Area.
6. This Agreement may be modified only in writing signed by both parties.
7. This agreement is not assignable without the written consent of both
parties,and shall be binding upon and inure to the benefit of the heirs and
successors of the parties.
IN WITNESS WHEREOF.the parties hereto have caused this Agreement to be executed
as of the day first hereinabove written.
East Bay Municipal Utility District
By:
Name: J04110
Titter MiKaaA 6P AasioLq
SFPP,L.P.
By. Kinder Morgan Operating I,P."D,"
its General Partner
By: Kinder Morgan G.P.,Inc.,
its General Partner
By. C ->�
Name: 99 76=
e-
Title: ec dg l.Rfe f'
FEDRQ/AGMTSrmspectiod996%UTAEBMUD.doc
is
MAR
TO:East Bay Municipal Utility District G
Risk Management Section
P.O.Box 74055, Ms#604 r EB.ft.UD. 463
RIScCPtnN�r_e► T
Oakland,CR 94623-1055 �cr,....,:_.•....:.,..�.-., � EBMUD
CLAIM AGAINST
NAME OF CLAIMANT AGE
SFPP, L.P. NIA
HOME ADDRESS CITY,STATE&ZIP HOME PHONE NO.
1100 Town&Country Road Orange,CA 92868
MAILING ADDRESS (H applicable) CITY.STATE&ZIP WORK PHONE NO.
c/o William H.G.Norman,Esq. 201 California Street,17th Floor 415 433-1900
White&Cooper LLP Francisco CA 94111
PLACE OF OCCURRENCE DATE OF OCCURENCE
2 Near Broadway between Newell Avenue and Rudgear Avenue in Walnut Creek,CA 1119104
TIME
approx.1:30 p-m.
CIRCUMSTANCES OF OCCURRENCE(Use bock of form,If necessory)
See nl
3
DESCRIPTION OF DAMAGE/INJURYAOSS
See attachment.
AMOUNT OF CLAIM NOTE:
$ See attachment ENCLOSE SUPPORTING DOCUMENTS.e.g.blas.estimates,invoices,etc.
POLICE DEPARTMENT(If applicable)
Walnut Creek Police Department
OWNER/DRIVER OF VEHICLE(S)(f applicable)
YOUR VEHICLE YEAR MAKE I COLOR MODEL UCENSE NUMBER
NAMES OF EBMUD EMPLOYEES INVOLVED(if known)
8 See attachment
EBMUD VEHICLE OR EQUIPMENT MAIC. R VEHICLE NUMBER LICENSE NUMBER
(I applicable) 7�1IEVOPERCOOP LLP
9 r
SIGNATURE OF CLAIMANT 1 �t
Willi m H. an,attorneys for SFPP.,L.P. DATE'.
NOTICE:
Pursuant to guvemment code section 911.2,you have 6 months to file a claim for death,personal Injury,or personal property.
AND
action 72ofthePenal Code provider"Everyperson with Intent to defraud,presentsforafiowance orforpaymeni to anystate board
x officer,or to any county,city or district board or officer,authorized to allow or pay the some N genuine,any false or fraudulent
claim,bill,account,voucher,or writing,Is punishable either by imprisonment In the.county]all for a period of not more than one
year,bya One ofnot exceeding one thousand(S 1,000),orby both such Imprisonment and fine,orbyfmprlsonmentin the state prison,
by a fine of not exceeding Pert thousand($10,000),or by both such Imprisonment and fine."
N-0r1•6199
Attachment to Claim Against EBMUD
3. Circumstances of Occurrence
EBMUD hired Mountain Cascade,Inc.("Mountain Cascade")to construct,excavate
and/or install a water pipeline through the City of Walnut Creek'(the"Water Pipeline
Project")." While working on the Water Pipeline Project,Mountain Cascade struck and.
ruptured a fuel transportation pipeline owned by SFPP,L.P.("SFPP"),resulting in a fatal
incendiary explosion.
EBMUD was negligent and/or grossly negligent in its hiring,retention,supervision and
direction of Mountain Cascade. EBMUD was additionally negligent and/or grossly
negligent in preparing,modifying and enforcing its contract documents with Mountain
Cascade. EBMUD was additionally negligent and/or grossly negligent with respect to its
own actions and inactions on the Water Pipeline Project,including without limitation
EBMUD's inspection activities.
EBMUD is liable in tort for SFPP's losses. In addition,EBMUD is contractually liable
for SFPP's losses pursuant to the February 6,2003 Pipeline Inspection Agreement
between EBMUD and SFPP. The Pipeline Inspection Agreement provides that
"EBMUD shall indemnify,defend and save SFPP,its affiliates,and all of their
employees,partners,agents,and representatives harmless from and against any and all
liability,claims,demands,damages,losses or costs(including reasonable at(orneys'fees)
of all kinds and character arising in anyway out of EBMUD's construction in the Project
Area,except to the extent caused by SFPP's negligence'or willful misconduct."
In addition,EBMUD must indemnify SFPP for all liability,claims,demands,damages,
losses and costs(including reasonable attorneys'fees)arising in connection with Contra
Costa Superior Court Case No.C-05-00281,Knox v.Mountain Cascade,Inc_,Kinder
Morgan Energy Partners ojHouston, Inc.and East Bay Municipal Utility District. A
copy of the First Amended Complaint in that case is attached hereto. EBMUD's
indemnification obligations arise under the February 6,2003 Pipeline Inspection
Agreement and under principles of equitable indemnity.
4. Description of Damages
Damages to SFPP,L.P.include:)
a. labor,material and incidental costs of repairing SFPP's fuel pipeline;
b. fuel product released and lost as a result of the rupture;
C. revenue losses caused when the pipeline was temporarily shut down to
investigate and implement repairs;and
1 SFPP believes there will be additional claims arising from the incident,and intends to
file additional claims with EBMUD when they arise.
517509.1
d. liability,claims,demands,damages,losses and costs(including reasonable
attorneys'fees),incurred as a result of Contra Costa Superior Court Case No.C-
05-00281,Knox v Mountain Cascade,Inc.,Kinder Morgan Energy Partners of
Houston,Inc. and East Bay Municipal Utility District.
5. Amount of Claim
The amount of damages exceeds$10,000. The claim would not be a limited civil case.
i
S. Names of EBMUD Employees Involved
Mountain Cascade,Inc.;Mark Miller,and various other employees of EBMUD whose
identities are not yet known.
Attachment: Copy of First Amended Complaint in Knox v.Mountain Cascade,Inc. et al.
517509.1
0 TO:East Bay Municipal Utility District
Risk Management Section
P.O.Box 24055, MS 8604
Oakland,CA 94623-1055 EBMUD
CLAIM AGAINST EBMUD
NAME OF ClA1MAM AGE
SFPP, L.P.; Kinder Morgan, Inc.; Kinder Morgan Energy Partners L.P. N/A
HOME ADDRESS CITY.STATE&I1P HOME PHONE NO.
1100 Town 8 Country Road Orange,CA 92868
MAILING ADDRESS (I appllcoble) CRI.STATE&T5P WORK PHONE NO.
clo William H.G.Norman,Esq. 201 California Street,17th Floor 415 433-1900
White&Cooper LLP a Francisco CA 94111 )
PLACE OF OCCURRENCE DATE OF OCCURENCE
;Z Near Broadway between Newell Avenue and Rudgear Avenue in Walnut Creek,CA 11/9/04
TIME
approx.1:30 p.m.
CIRCUMSTANCES OF OCCURRENCE(Use back of form If necossory)
See attachment.
�
DESCRIPTION OF DAMAG INJURY/LOSS
See attachment.
014
5 AMOUNT OF CLAIM NOTE:
S See attachment ENCLOSE SUPPORTING DOCUMENTS:e.g.bOL%estimates,invoices.etc.
6 POLICE DEPARTMENT(If applicable)
Walnut Creek Police Department
OWNER/DRIVER OF VEHICLE(S)(f applicable)
7 YOUR VEHICLE YEAR MAI(E COLOR MODEL 7NUMBER
NAMES OF EBMUD.EMPLOYEES INVOLVED(it known)
8 See attachment
EBMUD VEHICLE OR EQUIPMENT JMAKE COLOR VEHICLE NUMBER LICENSE NUMBER
(R applicable)
COOP {T C OPER LLP
9 SIGNATURE OF CLAIMANT
Illiam H. orman,attome s fo laimants DATE
NOTICE.-
Pursuant
OTICE:Pursuant to'g6vemment code sectlon 911.Y,you have 6 months to file a claim for death,personal inJmy,or personal property.
AND
Section 72althe penal Codeprovides:"Everyperson withintent to defraud,presents forollowance orlorpoyment fo anystateboard
'or office,"to any county,city or district board or officer,authorised to offow or pay the same ff genuine,any false or haudulent
claim,b74 account,voucher,or wrifing,Is punishable either byknprisonmenf In the county)all fora period ofnot more than one
year,byafineofnotexceedingono thousand($1,000),orbyboth suchimprtsonment and fine,orbylmprlsonmentin the stole prison,
by a fine of not exceeding fen thousand($10,000),or by both such Imprisonment and rine.-
WWI•6&4 ,
Attachment to Claim Against EBMUD
3. Circumstances of Occurrence
EBMUD hired Mountain Cascade,Inc.("Mountain Cascade")to construct,excavate
and/or install a water pipeline through the City of Walnut Creek(the"Water Pipeline
Project"). While working on the Water Pipeline Project,Mountain Cascade struck and
ruptured a fuel transportation pipeline owned by SFPP,L.P.,resulting in a fatal
incendiary explosion(the"Incident").
One lawsuit that has arisen out of the Incident is Alameda County Superior Court Case
No.RG05195680,Marilu Angeles et at v Kinder Morgan,Incorporated,et at EBMUD
must indemnify SFPP,L.P.,Kinder Morgan,Inc.,and Kinder Morgan Energy Partners
L.P.for all liability,claims,demands,damages,losses and costs(including reasonable
attorneys'fees)arising in connection with this lawsuit.
Another lawsuit that has arisen out of the Incident is Alameda County Superior Court
Case No.RG05195567,Juana Lilian Arias,et at v. Kinder Morgan,Incorporated, et at
EBMUD must indemnify SFPP,L.P.,Kinder Morgan,Inc.,and Kinder Morgan Energy
Partners L.P.for all liability,claims,demands,damages,losses and costs(including
reasonable attorneys'fees)arising in connection with this lawsuit.
Copies of the Complaints in the Angeles and Arias cases are attached hereto. F.BMUD's
indemnification obligations arise under the February 6,2003 Pipeline Inspection
Agreement and under principles of equitable indemnity.
4. Description of Damages
Damages to SFPP, L.P.include all liability,claims,demands,damages,losses and costs
(including reasonable attorneys'fees),incurred as a result of the two actions identified in
paragraph 3. Equitable and contractual indemnity for all such alleged liability,claims,
demands,damages,losses and costs is sought against EBMUD.
5. Amount of Claim
The amount of damages exceeds$10,000. The claim would not be a limited civil case.
8. Names of EBMUD Employees Involved
Mountain Cascade,Inc.;Mark Miller,and various other employees of EBMUD whose
identities are not yet known.
Attachments: Copies of two Complaints
517509.1 `
TO:East Bay Municipal Utility District
Risk Management Section
P.O.Box 74055, MS#604
Oakland,CA 94623-1055 EBMUD
CLAIM AGAINST
NME.OF CWMANT Kin er organ nc.; AGE
SFPP, L.P.; Kinder Morgan, Inc.; Kinder Morgan Energy Partners L.P. NIA
I40ME ADDRESS CRY,STATE&IJP HOME PHONE NO.
1100 Town&Country Road Orange,CA 92868 ,
MAILING ADDRESS Of appticoble) CITY STATE&DP WORK PHONE NO.
c/o William H.G.Norman,Esq. 201 California Street,17th Floor 415 433-1900
White&Coo er LLP Francisco CA 9411.1
PLACE OF OCCURRENCE DATE OF OCCURENCE
2 Near Broadway between Newell Avenue and Rudgear Avenue in Walnut Creek,CA 11/9/04
TIME
approx.1:30 p.m.
CIRCUMSTANCES OF OCCURRENCE(Use back of form,if necessary)
See attachment,
3
DESCRIPTION OF DAMAGE/INJURY/LOSS JII1()
See attachment.
4 AUG r. ..
EJ3.r,Lv.o.
RISK MANAGEMI3YT
5 AMOUNT OF CLAIM NOTE:
$ See attachment INCLOSE SUPPORTING DOCUMENTS:e.g,biCs,es1knotes,invoices,efa
6 POLICE DEPARTMENT Of applicable)
Walnut Creek Police Department
OWNER/DRIVER OF VEHICLE(S)(t applicable)
7 YOUR VEHICLEYEAR MAKE COLOR MODEL LICENSE NUMBER
NAMES OF EBMUD EMPLOYEES INVOLVED(It known)
8 See attachment
EBMUD VEHICLE OR EQUIPMENT MAKE COLOR VEHICLE NUMBER LICENSE NUMBER
(1f apliACabie)
COOP WHyt OOPER LLP
SIGNATURE OF CLAIMANT
itliam RdQiahan,atlbckeys for Claimants DATE
NOTICE:
Pursuanf to 96vemment code section 911.2,.you have 6 months to file a claim for death,personal injury,or personal property.
AND
Section 72ol theP.enol Code provides:"Everyperson with lntenl to delmud,presents for allowance orforpayment fo anystate board
oroicer,of to any county,city or district board or officer,author-zed to allow or pay the some H genuine,any false or fraudulent
claim,b171,account voucher,or writing,is punishable either by imprisonment in the county JaA for a period of not more than one
year,bya fineofnot exceedingone thousand(51,000),orbyboth suehlmprlsonment and fine,orbylmprisonment in thestote prfson,
by a fine of not exceeding ten thousand($10,000),or by both such imprisonment and fine."
Attachment to Claim Against EBMUD
3. Circumstances of Occurrence
EBMUD hired Mountain Cascade,Inc.("Mountain Cascade").to construct,excavate
and/or install a water pipeline through the'City of Walnut Creek(the"Water Pipeline
Project"). While working on the Water Pipeline Project,Mountain Cascade struck and
ruptured a fuel transportation pipeline owned by SFPP,L.P.,resulting in a fatal
incendiary explosion(the"Incident").
One lawsuit.that has arisen out of the Incident is Alameda County.Superior Court Case
No.RG05207720,Laura Reyes,et al.v.East Bay Municipal Utility District, et al.
EBMUD must indemnify SFPP,L.P.,Kinder Morgan,Inc.;and Kinder Morgan Energy
Partners L.P.and Kinder Morgan G.P.,Inc.for all liability,claims,demands,damages,
losses and costs(including reasonable attorneys'fees)arising in connection with this
lawsuit.
A copy of the Second Amended Complaint in the Reyes case is attached hereto.
EBMUD's indemnification obligations arise under the February 6,2003 Pipeline
Inspection Agreement and under principles of equitable indemnity.
4. Description of Damages
Damages include all liability,claims,demands,damages,losses and costs(including
reasonable attorneys'fees),incurred as a result of the action identified in paragraph 3.
Equitable and contractual indemnity for all such alleged liability,claims,demands,
damages,losses and costs is sought against EBMUD.
5. Amount of Claim
The amount of damages exceeds$10,000. The claim would not be a limited civil case.,
8. Names of EBMUD Employees Involved
Mark Miller,Carlos Rodriquez,Doug Poulsen,Mark Warzyniak,Vince Chang,William
Kirkpatrick,Dave McIntire,Michael Ambrose,and various other employees of EBMUD
whose identities are not yet known.
Attachments: Copy of the Second Amended Complaint
5175".2
RMCE. WED
O:East Bay Municipal utility District OCT 0 4 2005
Risk Management Section r'� `� �,�OFFteEn
- _P.O Box 74055, MS N604 -�••�•S-• � •sJ�� .
Oakland,C�4 94623-1055 EBMUD
CLAIM AGAINST i .
NAME OF CLAIMANTAGE
SFPP, L.P. .. . . ......... N/A
HOME ADDRESS CITY,STATE&ZIP HOME PHONE NO.
1100 Town&Country Road Orange,CA 92868
MAILING ADDRESS Ofplacable CRY.STATE&21P WORK PHONE NO.
c/o William H.G.Norman, sq. 201 California Street,17th Floor 415 433-1900
White&Cooper LLP Francisco,CA 94111
PLACE OF OCCURRENCE DATE OF OCCURINCE
2 Near Broadway between Newell Avenue and Rudgear Avenue in Walnut Creek,CA 11/9/04
TIME
approx 1:30 p.m.
CIRCUMSTANCES OF OCCURRENCE(Use hack of form,If necessary)
attachment,
3
,FDESCRPTK)NOFDAMAGE/INJURY/LOSS
e at(achment.
5AMOUNT OF CLAIM NOTE:
$ See attachment ENCLOSE SUPPORTING DOCUMENTS;e.g.bft estimates,Invoices,etc.
6 POLICE DEPARTMENT Of opplicoble)
Walnut Creek Police Department
OWNER/DR(VER OF VEHICLEM Of applicable)
7 YOUR VEHICLE YEAR MAKE COLOR MODEL [LICENSE NUMBER
NAMES OF EBMUD EMPLOYEES INVOLVED(if known)
8. See attachment
EBMUD VEHICLE OR EQUIPMENT MAKE OR VEHICLE NUMBER LICENSE NUMBER
(if appTcable)
COOP IT &C PER LLP
9
SIGNATURE OF CLAIMANT
William .N an attme s for Claimants DATE
NOTICE:
Pursuant to gdvemment code section 9114 you have 6 months to file a claim for dealh,personal ln1my,or personal property. O
AND
Yon 72.ofthe P..enal Code provider"Every person with Intent to defraud,presents for allowance or for poymenf fo onystafe board
w officer,art*any county,city or did dcf board ar officer,author►sed to allow or pay the some ifgenuine,any false or baudulent
claim,bill,account,voucher,-or wdling,Is punishable e►therby Imprisonment in the comlyfall for a pedod of not more than one
year,bya roe ofoot exceeding one thousand(ST,000),orbybofh such lmpdsonmenf and rrne,orbyimprhonmenf in thesfate prison, N<
by a One of not exceeding fen thousand(S 10,000),or by both such imprisonment and One..
wet•etve •
Attachment to Claim Against EBMUD
3. Circumstances of Occurrence
EBMUD hired Mountain Cascade,Inc.("Mountain Cascade")to construct,excavate.
and/or install a water pipeline through the City of Walnut Creek(the"Water Pipeline
Project"). While working on the Water Pipeline Project,Mountain Cascade struck and
ruptured a fuel transportation pipeline owned by SFPP,L.P.,resulting in a fatal
incendiary explosion(the"Incident").
One lawsuit that has arisen out of the Incident is Contra Costa County Superior Court
Case No.C-05-01573,Patrick T.Farley, et al. v. Mountain Cascade,Inc., et al.
EBMUD must indemnify SFPP,L.P.for all liability,claims,demands,damages,losses
and costs(including reasonable attorneys'fees)arising in connection with this lawsuit.
A copy of the Complaint in the Farley case is attached hereto. EBMUD's
indemnification obligations arise under the February 6,2003 Pipeline Inspection
Agreement and under principles of equitable indemnity.
4. Description of Damages
Damages.include all liability,claims,demands,damages,losses and costs(including
reasonable attorneys'fees),incurred as a result of the action identified in paragraph 3.
Equitable and contractual indemnity for all such alleged liability,claims,demands,
damages,losses and costs is sought against EBMUD.
5. Amount of Claim
The amount of damages exceeds$10,000. The claim would not be a limited civil case.
8. Names of EBMUD Employees Involved
Mark Miller,Carlos Rodriquez.,Doug Poulsen,Mark Warzyniak,Vince Chang,William
Kirkpatrick,Dave McIntire,Michael Ambrose,and various other employees of EBMUD
whose identities are not yet known.
Attachments: Copy of the Farley Complaint
52=2.1
RECEIVED
OCT 1 0 2005 �l_
*TO: East Bay Municipal Utility District ;`G, �� v Jx AV- ',w
Risk Management Section r 463P.O.Bax 74055, MS#604 SECRETARY S OFFICE
Oakland,CA 94623-1055 EBMUD
CLAIM AGAINST—EBMUD
NAME OF CLAUMANT Kln er--.organ U. -nc;; In..er organ, nc., AGE
SFPP, L.P.' Kinder-MorgarrEnergy:Partners, LP: ::: :: :: :: N/A
HOME ADDRESS CITY,STATE&ZIP HOME PHONE NO.
1100 Town&Country Road Orange,CA 92868
MAILING ADDRESS (If gllcable) CITY,STATE&ZIP WORK PHONE NO.
c/o William H.G.Norman,Esq. 201 California Street, 17th Floor 415 433-1900
White&Cooper LLP an Francisco CA 94111 t )
PLACE OF OCCURRENCE DATE OF OCCURENCE
2 Near Broadway between Newell Avenue and Rudgear Avenue in Walnut Creek,CA 11 /9/04
TIME
approx. 1:30 p.m.
CIRCUMSTANCES OF OCCURRENCE(the back of form,if necessary)'
See attachment.
3
DESCRIPTION OF DAMAGE/INJURY/LOSS
See attachment.
Q
5 AMOUNT OF CLAIM NOTE:
S See attachment ENCLOSE SUPPORTING DOCUMENTS.e.g.bills,estimates,invoices,etc.
POLICE DEPARTMENT Of applicable)
6, Walnut Creek Police Department
OWNER/DRIVER OF VEHICLE(S)(it applicable)
7 YOUR VEHICLE YEAR I MAKE COLOR I MODEL LICENSE NUMBER
NAMES OF EBMUD EMPLOYEES INVOLVED Of known)
8 See attachment
EBMUD VEHICLE OR EQUIPMENT MAKE COLOR VEHICLE 14UMBER LICENSE NUMBER
Of applicable)
CO IC OPER LLP
SIGNATURE OF CLAIMANT 7
am an,a tomes for Claimants DATE
NOTICE:
Pursuant to government code section 911.2,you have 6 months to file a claim for death,personal Injury,or personal property.
AMD
Section 72 ofthe Penal Code provides.,"Everyperson with intent to defraud,presents for allowance ortor payment to any slate board
or officer,or to any county,city or district board or officer,authorized to allow or pay the some it genuine,any false or haudulent
claim,bill,account,voucher,or writing,Is punishable either by Imprisonment in the county/all for a period of not more than one
year,by fine otnot exceeding one thousand(S 1,000),orbyboth such lmprisonmeof and fine,orbyimprisonment in the state prison,
by or fine of not exceeding len thousand($10,000),or by both such Imprisonment and fine."
M021-ave
Attachment to Claim Against EBMUD
3. Circumstances of Occurrence
EBMUD hired Mountain Cascade,Inc.("Mountain Cascade")to construct,excavate
and/or install a water pipeline through the City of Walnut Creek(the"Water Pipeline
Project"). While working on the Water Pipeline Project,Mountain Cascade struck and
ruptured a fuel transportation pipeline owned by SFPP,L.P.,resulting in a fatal
-incendiary explosion(the"Incident").
One lawsuit that has arisen out of the Incident is Contra Costa County Superior Court
Case No.C-05-01840,Ramos v East Bay Municipal Utility District et al.,EBMUD must
indemnify claimants for all liability,clainis,"demands,damages,losses and costs
(including reasonable attorneys'fees)arising in connection with this lawsuit.
A copy of the Complaint,in the Ramos case is attached hereto. EBMUD'.s
indemnification obligations arise under the February 6,2003 Pipeline Inspection
Agreement and under principles of equitable indemnity.
4. Description of Damages
Damages include all liability,claims,demands,damages,losses and costs(including
reasonable altorneys'fees),incurred as a result of the action identified in paragraph 3.
Equitable and contractual indemnity for all such alleged liability,claims,demands,
damages,losses and costs is sought against EBMUD.
5. Amount of Claim
The amount of damages exceeds$10,000. The claim would not be a limited civil case.
8. Names of EBMUD Employees Involved
Mark Miller,Carlos Rodriquez,Doug Poulsen,Mark Warzyniak,Vince Chang,William
Kirkpatrick,Dave McIntire,Michael Ambrose,and various other employees of EBMUD
whose identities are not yet known.
Attachments: Copy of the Ramos Complaint
528502.1
1:EcOt Bay Municipal Utility District
Risk Management Sectfon'
.P.O.Box 74055, MS 5604
Oakland,CA 946234055 ,EBf44UD
CLAIM AGAINST
NAWOFCLAIMANT AGE
SFPP, L.P., Kinder Morgan, Inc., Kinder Morgan Energy Partners, L.P. N/A `
HOME ADDRESS CITY.STATE&ZIP HOME PHONE NO.
1100 Town&Country Road Orange,CA 92868 ,
MAILING ADDRESS•(It applicable) CITY,STATE&21P WORK PHONE NO.
do William H.G.Norman,Esq.• 201 Califomia Street,17th Floor 415 433-1900
White&Cooper LLP San Francisco CA 94111 t )
PUKE OF OCCURRENCE DATE OF OCCURENCE
2 Near Broadway between Newell Avenue and Rudgear Avenue in Walnut Creek,CA 11 /9/04
TIME
approx.1:30 p.m.
CIRCUMSTANCES OF OCCURRENCE(Use back of form if necessary)
See altachMent.
3
DESCI PTION OF DAMAGE/INJURY/LOSS
See attachment.
tJ
AMOUNT OF CLAIM NOTE
S See attachment ENCLOSE SUPPORTING DOCUMENTS,e.g.bills,estimates,invoices etc.
6 POLICE DEPARTMENT(if applicable)
Walnut Creek Police Department
OWNER/DRIVER OF VEHICLE(S)Qf oppricable)
7 YOUR VEHICLE YEAR MAKE COLOR MODEL LICENSE NUMBER
NAMES OF EBMUD EMPLOYEES INVOLVED(if known)
8 See attachment I I
EBWD VEHICLE OR EQUIPMENT MAKE COLOR VEHICLE NUMBER LICENSE NUMBER
Qtappllcable)
9 COOPER,WHITE&COOPER LLP
SiE;WURF OF CLAIMANT
Jill S.Rowe afiorne s for Claimants DATE
NOTICE
Pursuonnl becvemment code section 911.z you have 6 months to We a claim for death,personal Injury,or personal property.
AND
dion7lofthe P..ena/Code provides:"Everyperson with fntentfo defraud,presentslorailowance ortorpayment fo anystaleboord
or office%or to any county,city or district board or officer,authorised to allow or pay the same N genuine,any false or fraudulent
claim,Sin account,voucher,or wilting,is punishable either by Imprisonment In the counly Jall for a period*(not more than one
0,
year,byaiee ofnot exceeding one thousand($1,000),orhybott i suchimprlsonmentand fine,orbyfmprisonment in t_hestaleprison,
by a tine otnot exceeding ten thousand($10,000),or by both such knprisonment and fine."
rEmr•erw .
Attachment to Claim Against EBMUD
3. Circumstances of Occurrence
EBMUD hired Mountain Cascade,Inc.("Mountain Cascade")to construct,excavate
and/or install a water pipeline through the City of Walnut Creek(the"Water Pipeline
Project"). While working on the Water Pipeline Project,Mountain Cascade struck and
ruptured a fuel transportation pipeline owned by SFPP,L.P.,resulting in a fatal
incendiary explosion(the"Incident").
One-lawsuit that has arisen out of the Incident is Contra Costa County Superior Court
Case No.JCCP 4433,Im v.Kinder Morgan Inc., et al. EBMUD must indemnify
claimants for all liability,claims,demands,damages,losses and costs(including
reasonable attorneys'fees)arising in connection with this lawsuit.
A copy of the Complaint in the Im case is attached hereto. EBMUD's indemnification
obligations arise under the February 6,2003 Pipeline Inspection Agreement and under
principles of equitable indemnity.
4. Description of Damages
Damages include all liability,claims,demands,damages,losses and costs(including.
reasonable attorneys'fees),incurred as a result of the action identified in paragraph 3.
. Equitable and contractual indemnity for.all such alleged liability,claims,demands,
damages,losses and costs is sought against EBMUD.
5. Amount of Claim
The amount of damages exceeds$10,000. The claim would not be a limited civil case.
8. Names of EBMUD Employees Involved
Mark Miller,Carlos Rodriquez,Doug Poulsen,Mark Warzyniak,Vince Chang,William
Kirkpatrick,Dave McIntire,Michael Ambrose,and various other employees of EBMUD
whose identities-are not yet known.
Attachments: Copy of the Im Complaint
.529946.1
aca!
EAST BAY •,AY
4613MUNICIPAL UTILITY DISTRICT COOPER, �.
May 4,2005
Willian H.G.Norman,Esq.
Cooper White&Cooper,LLP
201 California Street, 17`h Floor
San Francisco,CA 94111 J►'AY� ���
RE: ' EBMUD Claim No.04/270 �QQLIP
PFq
NOTICE OF REJECTION OF CLAIM
.Of SFPP,L.P.;Kinder Morgan,Inc.; Kinder Morgan Energy Partners L.P.
Dated:April 28,2005 Received: May 2,2005
Notice is hereby given that the claim that you presented to the Board of Directors of East
Bay Municipal Utility District has been rejected in its entirety on this date.
In compliance with Government Code Section 913,the following is quoted for your
information:
"WARNING"
"Subject to certain exceptions,you have only six(6)months from the
date this notice was personally delivered or deposited in the mail to file a
court action on this claim. See Government Code Section 945.6"
"You may seek the advice of an attorney of your choice in connection
with this matter. If you desire to consult an attorney,you should do so
immediately."
If you have additional questions,you may reach me at(510)287-0167.
Sincerely,
4ck Majors
Risk Management Assistant
375 ELEVENTH STREET.OAKLAND.CA 91607.1240.TOIL FREE 1-866-!*EBMUD ...
A 4 e
DECLARATION OF SERVICE BY MAIL p� 'gl'
F
State of California
County of Alameda
I am employed in the County of Alameda,State of California. I am over the age of 18
and not a party to the above-entitled cause. My business address is:
P.O.Box 24055
Oakland,-CA 94623=1055
I am familiar with the practice of East Bay Municipal Utility District for collection- the
application of appropriate postage and processing of correspondence for mailing with the
United States Postal Service. Under that practice,correspondence is deposited with the
UnitedStates Postal Service the same day it is submitted for mailing.
I served the foregoing document,Notice of Rejection of Claim,by placing a true copy
thereof for collection and mailing,in the course of ordinary business practice,with other
correspondence of East Bay Municipal Utility District,located at 375 11`h Street,
Oakland,CA 94607,on May 4,2005,enclosed in a sealed envelope,with the postage
thereafter properly applied and fully prepaid, addressed as follows:
Willian H.G.Norman,Esq.
Cooper White& Cooper,LLP
201 California Street, I 1 Floor
San Francisco, CA 94111
I declare under penalty of perjury that the foregoing is true and correct.
Executed this 4`h day of May,2005,at Oakland,California.
Rick Majors
Print or Type Name Signatur
0 +a r
�SEAST BAY �CeHV�
MUN/C/PAL UTILITY DISTRICT HAY
-52005 520U5
May 4,2005 COOPER,WHITE&COOPER LLp
Willian H.G.Norman,Esq.
Cooper White&Cooper,LLP
201 California Street,17`h Floor
San Francisco,CA 94111
RE: EBMUD Claim No.04/270
NOTICE OF REJECTION OF CLAIM
Of SFPP,L.P.
Dated:March'18,2005 Received: March 21,2005
Notice is hereby given that the claim that you presented to the Board of Directors of East
Bay Municipal Utility District has been rejected.in its entirety on this date.
In compliance with Government Code Section 913,the following is quoted for your
-- information:
"WARNING"
"Subject to certain exceptions,you have only six(6)months from the
date this notice was personally delivered or deposited in the mail to file a
court action on this claim. See Government Code Section 945.6"
"You may seek the advice of an attorney of your choice in connection
with this matter. If you desire to consult an attorney,you should do so
immediately."
If you have additional questions,you may reach me at(510)287-0167.
Sincerely,
Rick Majors
Risk Management Assistant
375 rav ni STREET.OAKLAND.cA 9168744.TOLL FREE i-8"0-EBMLR7
wawa►
DECLARATION OF SERVICE BY MAIL
OO�F9�lP
State of California
County of Alameda
I am employed in the County of Alameda,State of California. I am over the age of 18
and'not a party to the above-entitled cause. My business address is:
P.O.Box 24055
Oakland,CA 94623-1055
I am familiar with the practice of East Bay Municipal Utility District for collection,the
application of appropriate postage and processing of correspondence for mailing with the
United States Postal Service. Under that practice;correspondence is deposited with the
United States Postal Service the same day it is submitted for mailing.
I served the foregoing document,Notice of Rejection of Claim,by placing a true copy
thereof for collection and mailing,in the course of ordinary business practice,with other .
correspondence of East Bay Municipal Utility District,located at 375 11`h Street,
Oakland,CA 94607,on May 4,2005,enclosed in a sealed envelope,with the postage
thereafter properly applied and fully prepaid,addressed as follows:
Willian H.G.Norman,Esq.
Cooper White& Cooper,LLP
201 California Street, 1/h Floor
San Francisco, CA 94111
I declare under penalty of perjury that the foregoing is true and correct.
Executed this 4rh day of May,.2005,at Oakland,California.
Rick.Majors
Print or Type Name Signature
�a��oaoc�Qaa�
I COOPER,WHITE&COOPER LLP
WILLIAM H. G.NORMAN(SBN 49942)
2 BARRY R.OGILBY(SBN 118133) 11-3-05
JILL B.ROWE(SBN 197713)
3 VIJAY K.TOKE(SBN 215079) K.TORRE,CLERK OF THE COURT
201 California Street, 17`h Floor SUPERIOR COURT OF,CALIFORNIA
4 San Francisco, California 94111 COUNTY OF CONTRA COSTA-MARTINEZ
Telephone: (415)433-1900 BY: S.HARBRECHT, DEPUTY CLERK
5 Facsimile: (415)433-5530
6 Attorneys for Defendants Kinder Morgan Energy
Partners,L.P.;Kinder Morgan G.P.,Inc.;Kinder
7 Morgan,Inc.; SFPP,LP
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF CONTRA COSTA
11
12 GAS PIPELINE EXPLOSION CASES CASE NO.Judicial Council Coordinated
Proceedings No.4433
13 Coordinated Actions:
KNOX,et al.v.MOUNTAIN CASCADE,et DECLARATION OF WILLIAM NORMAN
14 al.(Contra Costa Sup. Ct. Case No.C 05- RE:ATTORNEY'S CERTIFICATE OF
00281);FARLEY v.MOUNTAIN MERIT
15 CASCADE,et al.(Contra Costa Sup. Ct.Case
No.C 05-01573);REYES,et al.v.EAST Assigned to Hon. Terence L.Bruiniers
16 BAY MUNICIPAL UTILITY DISTRICT,et Dept.: 5
al.(Alameda Sup. Ct. Case No.RG-05-
17 207720);ARIAS,et al.v.KINDER
MORGAN,et al.(Alameda Sup.Ct.Case No.
18 RG-05-195567);ANGELES,et al.v.
KINDER MORGAN,et al. (Alameda Sup.Ct.
19 Case No:RG-05-195680)
20
21
I,William H. G.Norman,declare as follows:
22
1. I am an attorney duly admitted to practice before this Court. I am a partner with
23
Cooper,White&Cooper LLP,attorneys of record for Defendants Kinder Morgan Energy
24
Partners,L.P.,Kinder Morgan G.P.,Inc.,Kinder Morgan,Inc.,and SFPP,L.P.. If called as a
25
witness,I could and would competently testify to all facts within my personal knowledge except
26
where stated upon information and belief.
27
28
COOPER.WHRE
8 COOPER LLP .
ATTORNETSATUW 530367.1 1
301 CALIFORNIA STREET
SAN FRANCISCO.u6/111 DECL.OF WILLIAM NORMAN RE:ATTORNEY'S CERTIFICATE OF MERIT
1 2. To the extent that any consultation is required by California Code of Civil
2 Procedure section 411.35(b)(1),I have been unable to obtain such consultation because a statute of
3 limitations would impair the action and the certificate contemplated in section 411.35(b)(1)could
4 not be obtained before the impairment of the action.
5 1 declare under penalty of perjury under the laws of the State of California.that the
6 foregoing is true and correct.
7 Executed November 3,2005, at San Francisco,California.
8
9 /s/William H.G.Norman
William H. G.Norman
10
11
12
13
14
15
16
,17
18
19
20
21
22
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24
25
26
27
28
COOPER,WHIM 530367.1WHIM
&COOPER LLP DF.CT. OF WII.IJAM NORMAN RF-CFRTIFTCATF.OF MFRTT
AirORNEYS AT
701 CANFORNIASMEET
SWFRANCOCO.A01111
1 .COOPER,WHITE&COOPER LLP
WILLIAM H.G.NORMAN(SBN 49942)
2 BARRY R.OGILBY(SBN 118133) d� ���� d
JILL B.ROWE(SBN 197713)
3 201 California Street, 171h Floor
San Francisco,California 94111 �Od
4 Telephone: (415)433-1900 12-23-05
Facsimile: (415)433-5530
5 K.TORRE;CLERK OF THE COURT
Attorneys for KINDER MORGAN ENERGY SUPERIOR COURT OF CALIFORNIA
6 PARTNERS,L.P.,KINDER MORGAN,G.P., CouNry OF CONTRA cosTA-MARTINEZ
INC.,KINDER MORGAN,INC.and S.F.P.P., BY: S.HARBRECHT. DEPUTY CLERK
7 L.P.
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF CONTRA COSTA
11
12 GAS PIPELINE EXPLOSION CASES JUDICIAL COUNCIL COORDINATION
PROCEEDING NO.4433
13 Coordinated Actions:
KNOX,et al.v.MOUNTAIN CASCADE,et al.(Contra [Lead Coordinated Case Knox,et al.v.
14 Costa Sup.CL Case No.C 05-00281);FARLEY v. Mountain Cascade,et al.,Contra Costa County
MOUNTAIN CASCADE,et al.(Contra Costa Sup.CL Case Superior Court Case No. C-05-00281]
15 No.C 05-01573);REYES,et al.v.EAST BAY MUNICIPAL
UTILITY DISTRICT,et al.(Alameda sup.CL Case No.RG- AMENDMENT TO CROSS-COMPLAINT
16 05-207720);ARIAS,et al.v.KINDER MORGAN,et al.
(Alameda Sup.Ct.Case No.RG-05-195567);ANGELES,et Dept.: 5
17 al.v.KINDER MORGAN,et al.(Alameda Sup.CL Case No.. Judge: Hon.Terence L.Bruiniers
RG-05-195680);RAMOS,et al.v.EAST BAY MUNICIPAL
18 UTILITY DISTRICT,et al.(Contra Costa County Superior Lead Action Filed: February 2,2005
Court Case No.C05-01840);USAA v.EAST BAY Trial Date: TBD
19 MUNICIPAL UTILITY DISTRICT, et al.,(Contra Costa
County Superior Court Case No.C05-02128);CHABOT v.
20 EAST BAY MUNICIPAL UTILITIES DISTRICT,ct al.,
(Contra Costa Superior Court Case No.C05-02312);
21 MATAMOROS v.KINDER MORGAN ENERGY
PARTNERS,L.P.,et al.,(Contra Costa County Superior
22 Court Case No.C05-02349);TAYLOR,et al.v.EAST BAY
MUNICIPAL UTILITY DISTRICT,et al.(Contra Costa
23 County Superior Court Case No.C05-02306);BECERRA v.
KINDER MORGAN ENERGY PARTNERS,L.P.,et al.,
24 (Contra Costa County Superior Court Case No.C05-02451);
IM,et al.Y.KINDER MORGAN,INC.,et al.(Contra Costa
25 County Superior Court Case No.C05-02077); PAASCH,et
al.v.EAST BAY MUNICIPAL UTILITY DISTRICT, et al..
26 (Contra Costa County Superior Court Case No.C05-01844);
FUENTES,et al.v.KINDER MORGAN, et al..(Contra
27 Costa County Superior Court Case No.C05-02286)
28
COOPER,WHiTE
6 COOPER LLP
ATTOMEYSATMW 532994.1 1
221 CAUFOMM STREET
e'"` '"A9411' AMENDMENT TO CROSS-COMPLAINT
I Pursuant to the Court's oral order of December 8,2005,Defendants SFPP,L.P.,Kinder
2 Morgan Energy Partners,L.P.,Kinder Morgan G.P.,Inc.,and Kinder Morgan,Inc.,(collectively,
3 "SFPP")file the following amendment to their cross-complaint in a coordinated actions:
4 1. The caption for the cross-complaint should be the captio a ched as Exhibit A hereto.
5 DATED:December 2005 COOPER & O PER LLP
6
7 By. i li orman
8 Attorneys or KINDER ORGAN ENERGY
PARTNERS,L.P.,KINMR MORGAN,G.P.,
9 INC.,KINDER MORGAN,INC.and S.F.P.P.,
L.P.
10
11
12
13
14
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17
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.26
27
28
COOPER WHITE 532994.1
6 COOPER LLP 2
,,;7°�"sem AMENDMENT TO CROSS-COMPLAINT
ewsn.NW&MC 111
1 COOPER,WHITE&COOPER LLP
WILLIAM H.G.NORMAN(SBN 49942)
2 BARRY R.OGILBY(SBN 118133)
JILL B.ROWE(SBN 197713)
3 201 California Street, 17'Floor
San Francisco,California 94111
4 Telephone: (415)433-1900
Facsimile: (415)433-5530
5
Attorneys for KINDER MORGAN ENERGY
6 PARTNERS,L.P.,KINDER MORGAN,G.P.,
INC.,KINDER MORGAN,INC.and S.F.P.P.,
7 L.P.
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF CONTRA COSTA
.11
12 JEREMY AND JOHANNA KNOX, JUDICIAL COUNCIL COORDINATION
individually, PROCEEDING NO.4433
13
Plaintiffs, [Lead Coordinated Case Knox,et al.v.
14 Mountain Cascade,et al.,Contra Costa County
Superior Court Case No. C-05-00281]
15 vs.
CROSS-COMPLAINT OF SFPP,L.P.,
16 MOUNTAIN CASCADE,INC.,ET AL.;and HINDER MORGAN,INC.,KINDER
DOES 1-50, MORGAN G.P.,INC.,and HINDER
17 MORGAN ENERGY PARTNERS L.P.
Defendants. AGAINST EAST BAY MUNICIPAL
18 UTILITY DISTRICT,MOUNTAIN
CASCADE,INC.,AND ROES 250
19
Lead Action Filed:. February 2,2005
20 Trial Date: TBD
21 SFPP,L.P.,KINDER MORGAN,INC.,
KINDER MORGAN G.P.,INC.,and
22 KINDER MORGAN ENERGY PARTNERS
L.P.,
23
Cross-Complainants,
24
V.
25
EAST BAY MUNICIPAL UTILITY
26 DISTRICT,MOUNTAIN CASCADE,INC.,
AND ROES 1-250,
27
Cross-Defendants.
28
COOPER,WHITE
E COOPER LLP 532995.1 1
ATT0RWY8ATU* CROSS-COMPLAINT OF SFPP,L.P.,KINDER MORGAN,INC.,KINDER MORGAN G.P.,INC.and KINDER
2M CAUFO1WMSTRUT
°"NFRANQSO'CA°"" MORGAN ENERGY PARTNERS L.P.AGAINST EBMUD,INC.AND ROES 1-250
i�
I DONALD W.CARLSON[SB No.: 792581
RANDY W. GIMPLE[SB No.: 1297051
2 SAMUEL P.TRUMBULL[SB No.:23 6046] .
CARLSON,CALLADINE&PETERSON LLP
3 353 Sacramento Street,16`h Floor
San Francisco,California 94111
4 Telephone: (415)391-3911
Facsimile: (415)391-3898
5
MICHAEL P.VERNA[SB No.84070]
6 LAWRENCE D.GOLDBERG[SB No. 1681421
BOWLES &VERNA
7 2121 N.California Blvd., Suite 875
Walnut Creek,CA 94596
8 Telephone: (925)935-3300
Facsimile: (925)935-0371
9
Attorneys for Defendant
10 EAST BAY MUNICIPAL UTILITY DISTRICT
II
SUPERIOR COURT OF THE STATE OF CALIFORNIA
;e 12
COUNTY OF CONTRA COSTA
13
w� a
14 GAS PIPELINE EXPLOSION CASES ) JUDICIAL COUNCIL COORDINATION
PROCEEDING NO.4433
s 15 Knox v.Mountain Cascade,Inc.,et al.
c�^ (Contra Costa Sup.CL Case No.C05-00281) ) DEFENDANT EAST BAY MUNICIPAL
16 Arias v.Kinder Morgan, Inc.,et al. ) UTILITY DISTRICT'S CROSS—
(Alameda Sup.Ct.Case No.RG-05-195567) ) COMPLAINT AGAINST KINDER
17 Angeles v.Kinder Morgan,Inc.,et al. ) MORGAN,INC.,KINDER MORGAN
(Alameda Sup.Ct.Case No.RG-05-195680) ) G.P.,INC.,KINDER MORGAN ENERGY
18 Reyes v.East Bay Mun.Utility Dist.,et al. ) PARTNERS L.P.,SFPP,L.P.,
(Alameda Sup.Ct.Case No.RG-05-207720) ) MOUNTAIN CASCADE,INC.,
19 Farley v.Mountain Cascade,Inc.,et al. ) COMFORCE TECHNICAL SERVICES,
(Contra Costa Sup.CL Case No.C05-01573) ) INC.,CAROLLO ENGINEERS,CAMP
20 Inn v.Kinder Morgan,et al. } DRESSER&MCKEE,INC;,AND ROES
(Contra Costa Sup.CL Case No.C05-02077) } 1-200
21 Paasch v.East Bay Mun.Utility Dist.,et al. )
(Contra Costa Sup.Ct.Case No.COS-08144) ) Judge:Hon.Terence L.Buiniers
22 Fuentes v.Kinder Morgan,et al. ) Department: Five
(Contra Costa Sup.Ct.Case No:C05-02286) )
23 USAA v.East Bay Mun. Utility Dist.,et-al. )
(Contra Costa Sup.CL Case No: C05-02128) )
24 )
25
Defendant and Cross-Complainant East Bay Municipal Utility District (hereinafter
26
"EBMUD") by way of a Cross-Complaint (hereinafter "Cross-Complaint") hereby brings the
27
following cross-claims against Cross-Defendants Kinder Morgan, Inc.,Kinder Morgan G.P., Inc.,
28 '
i
DEFENDANT EASTBAY MUNICIPAL UTILITY DIsTR1Cr1S CROSS COMPLAINT
um.rn.r w-a...nn ltA/tnTTwt•'.9!111 TTA/'.TRT\11tI+1L'. ..��.
l
Kinder Morgan Energy Partners L.P., SFPP, L.P., Mountain Cascade, Inc., Comforce Technical
2
Services, Inc., Carollo Engineers, Camp Dresser & McKee, Inc., and Roes: 1 through 200,
3
inclusive(collectively hereinafter"Cross-Defendants"),and complains and alleges as follows:
4
GENERAL ALLEGATIONS
5
1. EBMUD is, and at all times relevant herein was, a publicly owned utility formed
6
under the Municipal District Act passed by the California Legislature in 1921. EBMUD maintains
7
its administrative and head offices in the City of Oakland,California.
8
2. EBMUD is informed and believes, and based thereon alleges,that Defendant and
9
Cross-Defendant Kinder Morgan Energy Partners L.P. ("KMEP") is, and at all times relevant
10
herein was,a limited partnership doing business in the State of California.
11 -
a 3. EBMUD is informed and believes, and based thereon alleges, that Defendant and
0 12 Cross-Defendant Kinder Morgan,Inc.("KM") is,and at all times relevant herein,was,a Delaware
a = 13
a a corporation doing business in the State ofCalifornia.
4. EBMUD is informed and believes, and based thereon alleges, that Defendant and
ys 14
...i w 15
' Cross-Defendant SFPP,L.P. (SFPP") is, and at all times relevant herein was, a Delaware limited
0
16
partnership doing business in the State of California.
U 17
5. EBMUD is informed and believes, and based thereon alleges, that Defendant and
18
Cross-Defendant Kinder Morgan, G.P. Inc. ("KMGP") is, and at all times relevant herein was, a
19
Delaware corporation doing business in the State of California.
20
6. Defendants KMEP, KM, SFPP, and KMGP will be referred to collectively as
21
KINDER MORGAN.
22
7. EBMUD is informed and believes, and based thereon alleges, that Defendant and
23
Cross-Defendant Comforce Technical Services,Inc. ("COMFORCE")is, and at all times relevant
24
herein was,a Delaware corporation doing business in the State of California.
25
8. EBMUD is informed and believes, and based thereon alleges, that Defendant and
26
Cross-Defendant Mountain Cascade Incorporated("MCI')is,and at all times relevant herein was,
27
a California corporation.
28
2
DEFENDANT EAsr B.4Y MUNICIPAL UTrLny MsTiucrls CRoss.-CoMPrAiNT
. n mrnr�r Jnr rnr�n !`/1lrTTIIT TA1r Orf MTCnTr/ MA •w»
1
9. EBMUD is informed and believes, and based thereon alleges, that Defendant and
2
Cross-Defendant Camp Dresser&McKee,Inc. ("CDM")is,and at all times relevant herein was,a
3
Massachusetts corporation qualified to do business and doing business in the State of California.
4
10. EBMUD is informed and believes, and based thereon alleges that Defendant and
5
Cross-Defendant Carollo Engineers,P.C. ("CAROLLO'l is, and at all times relevant herein was,
6
an Arizona corporation qualified to do business and doing business in the State of California.
7
11. The true names and capacities of Cross-Defendants sued herein as Roes l through
8
200, inclusive, are unknown and therefore EBMUD sues these Cross-Defendants by fictitious
9
names. EBMUD is informed and believes, and on that basis alleges, that each Cross-Defendant
10
designated Roe is responsible under law in some manner,negligently,contractually or otherwise,
I1
for the events and happenings referred to in this Cross-Complaint,and thereby proximately caused
z 12
0 the damages and injuries to EBMUD as alleged. EBMUD will amend this Cross-Complaint to
13 allege the true names and capacities of these fictitiously named Cross-Defendants when the same
14
has been ascertained.
s 15
12. EBMUD is informed and believes, and on that basis alleges, that at all times
16
relevant herein, each of the Cross-Defendants was the agent, employee and/or servant of each of
17
the remaining Cross-Defendants and in doing the things mentioned herein, was acting within the
18
scope of such agency and employment with the permission and consent of each of the remaining
19
Cross-Defendants.
20
13. Plaintiffs have filed complaints for wrongful death, personal injury, property
21
damage, and/or other loss or damage as a result of the incident set forth in the complaints on or
22
about November 9, 2004 ("Plaintiffs"). Most of these actions have been coordinated in Contra
23 '
Costa County Superior Court as the "Gas Pipeline Explosion Cases." Any future complaints
24
alleging wrongful death, personal injury, property damage, and/or other loss or damage arising
25
from the subject incident on or about November 9, 2004, will also be considered to be by
26
"Plaintiffs"herein and subject to this master cross-complaint pursuant to court order of December
27
8,2005,in this coordinated proceeding. The coordinated cases are:
28
3
DEFENDANT FAST BAY MUNICIPAL UTILITY DISTRICT'S CROSS-COMPLAINT
•TTIT%ld-TAT /YII TWIT (`MDT1TXT A TIAMDDMCCIITAil:XIn AA 71
1
a. Angeles v. Kinder Morgan, et al., Alameda County Superior Court Case No. RG-
2
05-195680;
3
b. Arias, et al., v. Kinder Morgan, et A., Alameda County Superior. Court Case No.
4
RG-05-195567;
5
c. Chabot v.East Bay Municipal Utility District,et al.,Contra Costa County Superior
6
Court,Case No.C05-02312;
7
d. Farley v.Mountain Cascade,Inc., et al.,Contra Costa County Superior Court Case
8
No.C05-01573;
9
e. Fuentes v. Kinder Morgan Energy Partners, L.P., et al., Contra Costa County
10
Superior Court Case No. COS-02286;
11
f. Im v. Kinder Morgan, Inc.,'Contra Costa County Superior Court Case No. C05-
12
02077;
13
a g. Knox v. Mountain Cascade, Inc., Contra Costa County Superior Court Case No.
d
€ 14 C05-00281;
ca 4 15 h. Matamoros v.Kinder Morgan Energy Partners,L.P.,Contra Costa County Superior
16
Court Case No.JCCP No.443;
U 17
i. Paasch v. East Bay Municipal Utility District,Contra Costa County Superior Court
18
Case No.C05-01844;
19
j. Ramos v.East Bay Municipal Utility District,Contra Costa County Superior Court
20
Case No.C05-01840;
21
k. Reyes v.East Bay Municipal Utility District,Alameda County Superior Court Case.
22
No.RG-05-20770;
23
1. Taylor v.East Bay Municipal Utility District, Contra Costa County Superior Court
24
Case No.C05-02306;
25
m. United Services Automobile Association v. East Bay Municipal Utility District,
26
Contra Costa County Superior Court Case No.C05702128;
27
28
4
DEFENDANT EAST BAYMUNICIPAL UTILrrY DISMICr's CROSS--COMPLAM-i
1
14. These Plaintiffs' complaints will be. referred to as "Plaintiffs' Complaints."
2
EBMUD disputes and denies liability for the events and damages alleged in said Plaintiffs'
3.
Complaints.
4
FIRST CAUSE OF ACTION
5 (Declaratory Relief Against All Cross-Defendants)
6
15. EBMUD incorporates herein each and every allegation contained;in Paragraphs 1
7
through 14,inclusive.
8
16. On or about November 3, 2005, Cross-Defendant KINDER MORGAN filed a
9
cross-complaint for Negligence and Indemnity against EBMUD, MCI, CAROLLO, CDM, and
10
Roes 1-250 in the Superior Court of California,Contra Costa County. EBMUD denies any and all
a 11
liability for the facts and damages alleged in said cross-complaint.
c 12
13 17. On or about December 12, 2005, Cross-Defendant MCI filed a complaint for
q 14 Negligence, Breach of Contract, Indemnity and other claims against EBMUD and various other
Q defendants in the Superior Court of California, Contra Costa Count Case No. C05-02576.
S P � Y�
ti 15
Z EBMUD denies any and all liability for the facts and damages alleged in said complaint.
16
U
18. As a result of the filing of the Plaintiffs'Complaints,KINDER MORGAN's Cross-
17
Complaint and MCI's Complaint, EBMUD has been required to retain, and has retained, legal
18
counsel to defend against Plaintiffs', KINDER MORGAN's and MCI's claims and EBMUD has
19
incurred, and will continue to incur, costs and expenses for investigation, expert witnesses, legal
20
fees and other costs and expenses necessary to properly defend the actions, the full amount of
21
which has not yet been ascertained.
22
19. EBMUD contends that Cross-Defendants, not EBMUD, are solely responsible for
23
the events, occurrences, conduct and/or resulting damages, if any, described in Plaintiffs'
24
Complaints, KINDER MORGAN's Cross-Complaint and MCI's Complaint: If Plaintiffs,
25
26 KINDER MORGAN and/or MCI were, in fact, injured and damaged as alleged in the Plaintiffs'
Compaints, KINDER MORGAN's Cross-Complaint or MCI's Complaint, then said injuries and
27
damages were solely and entirely the result of acts and/or omissions of Cross-Defendants.
23
5
DEFENDANT EAST BAY MUNICIPAL UTILITY DISTRICT'S C{toss-COMPLAIN'
1
20. An actual controversy now exists between EBMUD and Cross-Defendants in that
2
EBMUD contends that (1) as between EBMUD and Cross-Defendants, responsibility, if any, for
3
the damages claimed by Plaintiffs, KINDER MORGAN, and MCI herein, rests entirely or
4
partially on Cross Defendants; and (2) Cross Defendants are obligated to defend and partially or
5
fully indemnify EBMUD for any sums EBMUD may be compelled to pay as a result of any
6
damages,judgment or other awards recovered by PIaintiffs,KINDER MORGAN;or MCI against
7
EBMUD.
8
21. EBMUD desires judicial determination.of the respective rights and duties of
9
EBMUD. and Cross-Defendants with respect to Plaintiffs', KINDER MORGAN's and MCI's
10
claims for damages. In particular, EBMUD desires a declaration of comparative liability of
11
a EBMUD and Cross-Defendants for these damages, and a declaration of Cross-Defendants'
0 12
responsibility to EBMUD for any sums that EBMUD may be compelled to pay and for which
13
O K x Cross-Defendants are determined responsible,entirely or in part.
14
a 22. Such a declaration is necessary and appropriate at this time in order that EBMUD
N 15
may ascertain its legal rights and duties with respect to Plaintiffs', KINDER MORGAN's and
16
MCI's claims for damages.
17
WHEREFORE,EBMUD prays for judgment against Cross-Defendants, and each of them,
18
as set forth below.
19
SECOND CAUSE OF ACTION
20 (Express Indemnity Against Kinder Morgan,MCI and CDM)
21 23. EBMUD incorporates herein each and every allegation contained in Paragraphs 1
22 through 22,inclusive.
23 24. KINDER MORGAN is contractually obligated to defend, indemnify, and hold
24 EBMUD harmless for any claims, losses, or damages arising out of, or resulting from KINDER
25 MORGAN's conduct.
26 .25. MCI is contractually obligated to defend, indemnify, and hold EBMUD harmless
27 for any claims,losses,or damages arising out of,or resulting from MCI's conduct..
28
6
DEFENDANT EAST BAY MUNICIPAL UTILITY DIsTRIcT's CRo&c_ComPLAWT
1
26. CDM is contractually obligated to defend, indemnify, and hold EBMUD harmless
2
for any claims,losses,or damages arising out of,or resulting from CDM's conduct.
3
27. Although EBMUD has denied and continues to deny that Plaintiffs, KINDER
4
MORGAN or MCI have in any way been damaged by any act or failure to act on the part of
5
EBMUD,in the event that Plaintiffs,KINDER MORGAN and/or MCI prevail against EBMUD on
6
the purported causes of action asserted against EBMUD in Plaintiffs' Complaint, KINDER
7
MORGAN's Cross-Complaint, and MCI's Complaint, EBMUD will be damaged in an amount
8
equal to any judgment rendered against it in favor of the Plaintiffs,KINDER MORGAN and/or
9
MCI and will be entitled to be indemnified and reimbursed by KINDER MORGAN, MCI,and/or
10
CDM in the same amount. The full amount of said damages is not presently ascertainable and will
11
not be ascertainable until the conclusion of this action, at which time EBMUD will seek leave to
z 12
amend this Cross-Complaint_by inserting such amount.
t 13
28. EMBUD is also entitled to full reimbursement from KINDER MORGAN, MCI,
14
and CDM for any and all attorneys' fees and costs incurred in the defense of Plaintiffs' action,
$ 15
" KINDER MORGAN's cross-action, MCI's action, and the prosecution of this Cross-Complaint.
0 16
The full amount of said damages is not presently ascertainable and will not be ascertainable until
17
the conclusion of this action,at which time EBMUD will seek leave of Court to amend this Cross-
18
Complaint by asserting such amount.
19
WHEREFORE,EBMUD prays for judgment against MORGAN,MCI,and CDM and each
20
of them,as set forth below.
21
THIRD CAUSE OF ACTION
22 (Equitable Indemnity Against All Cross-Defendants)
23 29. EBMUD incorporates herein each and every allegation contained in.Paragraphs 1
24 through 28,inclusive.
25 30. EBMUD is informed and believes and thereon alleges that Cross;Defendants are
26 either partially or wholly responsible and liable for any damages allegedly sustained by Plaintiffs,
27 KINDER MORGAN or MCI. In the event Plaintiffs, KINDER MORGAN and/or MCI recover
28 damages through settlement or judgment from EBMUD,the damages will be the proximate result
7
DEFENDANT EAST BAY MUNICIPAL UTILITY DISTRICT'S CROSS-COMPLAINT.
l
of the primary and active negligence or other fault of Cross-Defendants. The conduct of EBMUD
2
did not proximately contribute to Plaintiffs',KINDER MORGAN's or MCI's injuries and was at
3
most secondary and passive in nature.
4
31. Therefore, EBMUD is entitled to full or partial indemnity from Cross-Defendants
5
according to the principles of comparative fault and equitable allocation .of loss for any
6
contribution made by EBMUD to Plaintiffs',KINDER MORGAN's and/or MCI:'s recovery or for
any amount or amounts for which EBMUD is found liable to the Plaintiffs,KINDER MORGAN
8
and/or MCI in excess of the percentage of the.verdict of judgment which is proportionate to the
9
comparative fault,if any,of EBMUD.
10
32. In view of the fact that Plaintiffs', KINDER MORGAN's and MCI's damages, if
11
a any, were caused in whole or in part by the actions or inactions of Cross-Defendants, it is
0 12
y equitable and appropriate for Cross-Defendants to indemnify EBMUD for any 4amages that may
13
a w a be assessed against EBMUD, and,f n-thermore, for any legal expenses, including but not limited
5 14
to,attorneys' fees,that EBMUD may incur in defending the action.
15
WHEREFORE, EBMUD prays for judgment against Cross-Defendants, and each of them,
o. 16
as set forth below.
17
FOURTH CAUSE OF ACTION
18 (Breach of Contract Against Kinder Morgan and Roes 1-50)
19 33. EBMUD incorporates herein each and every allegation contained in Paragraphs 1
20 through 32,inclusive.
21 34. EBMUD is informed and believes and thereon alleges that KINDER MORGAN
22 and ROES 1-50 owned, opdrated or otherwise retained control of the subject Kinder Morgan
23 Pipeline that ruptured during the incident set forth in the complaints on or about November 9,
24 2004.
25 35. EBMUD is informed and believes and thereon alleges that on or about February 6,
26 2003 KINDER MORGAN and ROES 1-50 entered into a written agreement with EBMUD
27 entitled "Pipeline Inspection Agreement," whereby KINDER MORGAN and ROES 1-50
28 expressly and impliedly agreed to perform certain obligations, including providing inspection
8
DEFENDANT EAST BAY MUNICIPAL UTILITY DISTRICT'S CROSS-COMPLAINT
n warn . n� mnrr /MOr•r�l.Tl��T AT ni.nrr�lwin f1A /A'f0
i
1 .
services during EBMUD's construction activities near the pipeline easement. A true and correct
2
copy of the Pipeline Inspection Agreement is attached as Exhibit A.
3
36. EBMUD is informed and believes and thereon alleges that KINDER MORGAN
4
and ROES 1-50 undertook and assumed, for valuable consideration, the expressed and implied
5
contractual obligations of the aforesaid contract.
6
37. EBMUD is informed and believes and thereon alleges that KINDER MORGAN
7
and ROES 1-50 failed to perform its obligations under the aforesaid contract.
8
38. As an actual and proximate result of said breach of contract by KINDER
9
MORGAN and ROES 1-50,EBMUD has been damaged.
10
PRAYER FOR RELIEF
11
WHEREFORE,EBMUD prays this Court to enter judgment as follows:
z 12
TA On the First Cause of Action:
U13 1. For a judicial determination that Cross-Defendants are obligated to fully indemnify
14
a F EBMUD for all past and future fees incurred to defend those portions of Plaintiffs' Complaint,
Barg 15
KINDER MORGAN's Cross-Complaint and MCI's Complaint relating to Cross-Defendants'
� 16
conduct and all damages claimed by Plaintiffs,KINDER MORGAN and MCI,if any are found to
17
exist,that arise from Cross-Defendants'conduct;
18
2. For a declaration that Cross-Defendants are obligated to fully indemnify EBMUD
19
if this Court adjudges that EBMUD is compelled to pay any sum as the resulfof any damages,
20
judgment, or other award recovered by Plaintiffs, KINDER MORGAN and/or MCI in this
21
litigation;
22
On the Second Cause of Action:
23
1. That KINDER MORGAN,MCI and CDM,inclusive,be held liable by this court to
24
indemnify and reimburse EBMUD,in whole or in part,in the amount of any judgment that may be
25
rendered against it and in favor of Plaintiffs, KINDER MORGAN and/or MCI, and proportioned
26
to the responsibility of Cross-Defendants;
27
28
9
DEFENDANT EAST BAY MUNICIPAL UTILITY DisTRICT's CROSS-COMPLAINT
1
On the Third Cause of Action:
2
1. That Cross-Defendants, inclusive, be held liable by this court to indemnify and
3
reimburse EBMUD, in whole or in part, in the amount of any judgment that may be rendered
4
against it and in favor of Plaintiffs, KINDER MORGAN and/or MCI, and proportioned to the
5
responsibility of Cross-Defendants;
6
On the Fourth Cause of Action:
7
1. That KINDER MORGAN and ROES 1-50 be held liable by this court for breach of
8
contract,and be obligated to pay EBMUD in accordance therewith;
9
On all Causes of Action:
10
A. For costs of suit incurred herein;
11
B. For attorneys'fees and expenses;
i; 12
C. For interest as allowed by law;and
t 13
D. For such other relief as this Court deems appropriate.
14
=1 a 15
c� y Dated: December 1_�,2005 CARLSON,CALLADINE&PETERSON
16
U 17
By
18 S EL P.TRUMBULL
Attorneys for Defendant East Bay Municipal
19 Utility District
20
21
22
23
24
25
26
27
28
i 10
DEFENDANT EAST BAY MUNICIPAL UTILITY DIsTRiCT's CRoss•-COMPLAINT
.. n.I..\• /./\�r.�.t MI\/\nl\i.T1/\1}\\�f\Arf!n1\l!'.\.!\ •tel•.
PIPB.I.wE INSPECTION AGRF.EM1W
This AGREEMENT is made and entered into this 46 day.q.f&L ,2(}��'�
and between East Bay Municipal Utility District("EBMM')and SPPP,ILP.,(" P')with
reference to the following facts:
A. EBMUD is planning to construct water transmission facilities referred to as the
Walnut Creek-San Ramon Valley Transmission Improvements Project that will impact SFPP's
pipeline easement(the"Project'Area'O.
B. SFPP owns,operates and maintains a 10-inch petroleum product pipeline and
appurtenances-witltin the Project Area_
NOW,THEREFORE,in consideration of the teims and conditions contained herein,
along with other good and valuable consideration,the sufficiency of which is hereby
acknowledged,SFPP and EBMiJD hereby agree as follows:
1. nNfUD shall notify SFPP at least 10 days prior to any construction activities in
-. the Project Area. Upon receiving proper notice,SFPP shall provide inspection services during
EBMUD's construction activities near the pipeline easement in the Project Area.
2 EBMUD shall pay SFPP the actual cost of pipeline inspection,estimated.at$350
per day,plus a 19.4%markup for associated general and administrative overhead- SFPP
estimates that the total cost of the inspection services to be provided under this Agreementwill
be$3600.
3. EBMUD sIW1 pay a deposit of$20,000 within 5 days after executing this
Agreement. SFPP will submit a monthly statement of the inspection services documenting,the
name of the inspector,date of inspection.hours worked,and salary rate.If the$20,000 deposit is
depleted,IMMUD will deposit the additional estimated amount of$17,600.When the final
accounting of the actual cost of the pipeline inspection services is completed.SFPP will subriiit
an itemized billing to EBMUD for review,together with an invoice for additional cost or SFPP's
check to reconcile any difference between the actual and the estimated cost: If the actual cost
was greater than the estimated cost,EBMUD shall pay SFPP any invoiced amount within 30.
days after receiving such invoice from SFPP. SFPP shall maintain records for 3years of the
actual costs incurred And charged or allocated to the work in accordance with generally accepted
accounting principles.
4. EBMUD shrill indemnify,defend,and save SFPP,its affiliates,and all of their;
employees,partners,agents,and representatives harmless from and against any and all liability,
claims,•demands,damages,losses or costs(including reasonable attorneys'fees)of all kinds and
character arising in ahy way out of EBMUD's construction in the Project Area,except to the ,
extent caused by SFPP's negligence or willful misconduct.SFPP shall indemnify,defend and
save EBMUD and all of its employees,partners,agents,directors.and representatives harmless
from and against any and all liability,claims,demands,darrrages,'lb'ses or Costs(including
reasonable attorneys' fees)of all and character arising in any way out of SFPP's
ll kinds
negligence,or willful misconduct and relating in any way to the Project Area,except to the
extent caused by EBMW's negligence or willful miscondyct,
S. This Agreement contains the entire agreement between EBM M and SPPP
with respect to payment to SPt'P'W pipeline inspection services within
the Project Area.
& This Agreement may be modified only in writing signed by both parties.
? This agreement is not assignable without the written consent of troth
parties,and sW be binding upon and inure to the benefit of the heirs and
successors of the parties.
IN WrrNESS WHEItEoF,the parties hereto have caused this Agreement to be executed
as of the day first hereinabove written.
Fast Bay Municipal Utility]District
Y.
Tkle-.
SFPP,iL.P.
By: Kinder.Morgan operating LP."D,"
its General Partner
By: KitrderMorgan G.P.,Inc„ '!^^
its General Partner
By:_..
Title: Se--4
t3:flSti2ACiMTSt>ispcc::c�199 3as,;pgrr![SD.doc
I PROOF OF SERVICE
Gas Pipelfne Eylosfon Cases(Consolidated Cases)
2 Judicial Council Coordination Proceeding No.4433
3 I,the undersigned,declare that I am employed in the County of San Francisco,State of
4 California. I am over the age of eighteen years and not a party to the within action;my business
5 address is CARLSON, CALLADINE & PETERSON, 353 Sacramento Street; Suite 1600,•San
6
Francisco,California 94111.
7
8 On December 20,2005,I served a true copy of the following document(s):
9 DEFENDANT EAST BAY MUNICIPAL UTILITY DISTRICT'S CROSS—COMPLAINT
AGAINST HINDER MORGAN,INC.,HINDER MORGAN G.P.,INC.,KINDER
10 MORGAN ENERGY PARTNERS L.P.,SFPP,L.P.,MOUNTAIN CASCADE,INC.,
COMFORCE TECHNICAL SERVICES,INC.,CAROLLO ENGINEERS,CAMP
a 11 DRESSER&MCKEE,INC.,AND ROES 1-200
a
0 12 electronically on the attached list of designated recipients through One Legal at
N
C'
13 http://www.Qneleaal.com. Upon completion of electronic transmission of said document(s), a
o14 receipt is issued to serving party acknowledging receipt by One Legal's system.: Once One Legal
a„ $ 15 has served all designated recipients,proof of electronic service is returned to the filing party which
16 will be maintained with the original document(s)in our office. This service complies with CCP
17 § 1010.6.
18 1 declare under penalty of perjury under the laws of the State of California that the
19 foregoing is true and correct and that this declaration was executed at San Francisco,California,
20 on December 20,2005.
21
22
Beverley Ling
23
24
25
26
27
28
i�
1 SILVANO B. MARCHESI (SBN 42965)
County Counsel
2 GREGORY C. HARVEY(SBN 47974)
Assistant County Counsel
3 COUNTY OF CONTRA COSTA
651 Pine Street, 9th Floor
4 Martinez, California 94553
Telephone: 925 335-1800
5 Facsimile: 925 335-1866
gharv@cc.cccounty.us
6
Attorneys for Defendants
7 CONTRA COSTA COUNTY and COUNTY
OF CONTRA COSTA FLOOD CONTROL AND
8 WATER CONSERVATION DISTRICT
9
SUPERIOR COURT OF CALIFORNIA
10
COUNTY OF CONTRA COSTA
11
12 GAS PIPELINE EXPLOSION CASES Judicial Council Coordination
Proceedings No. 4433
13 Coordinated Actions:
KNOX, et al.v.MOUNTAIN CASCADE, et al. (Unlimited Civil)
14 (Contra Costa Sup.Ct. Case No.005-00281);
FARLEY v.MOUNTAIN CASCADE, et al. (Contra CONTRA COSTA COUNTY AND
15 Costa Sup. Ct. Case No. C05-01573);REYES,et al. CONTRA COSTA FLOOD CONTROL
v. EAST BAY MUNICIPAL UTILITY DISTRICT, AND WATER CONSERVATION
16 et al. (Alameda Sup.Ct.Case No. RG-05-207720); DISTRICT'S CROSS COMPLAINT
ARIAS,et a1.v.KINDER MORGAN,et al. (Alameda AGAINST EAST BAY MUNICIPAL
17 Sup.Ct.Case No. RG-05-195567); ANGELES,et al. UTILITY DISTRICT, MOUNTAIN
v. KINDER MORGAN,et al.(Alameda Sup. Ct. CASCADE INC., KINDER MORGAN,
18 Case No. RG-05-915680);RAMOS, et al.v. EAST INC., KINDER MORGAN ENERGY
BAY MUNICIPAL UTILITY DISTRICT,et al. PARTNERS L.P. SFPP, L.P., KINDER
19 (Contra Costa Sup.Ct. Case No. C05-01840); USAA MORGAN GROUP; G.P. INC.,
v. EAST BAY MUNICIPAL UTILITY DISTRICT COMFORCE TECHNICAL SERVICES,
20 et al. (Contra Costa Sup.Ct Case No. C05-02128); CAMP DRESSER&MCKEE,
CHABOT v. EAST BAY MUNICIPAL UTILITIES COROLLO ENGINEERS, P.C., AND
21 DISTRICT et al.(Contra Costa Sup.Ct.Case No. ROES 1-10.
C05-02312);MATAMOROS v.KINDER MORGAN
22 ENERGY PARTNERS,L.P., et al(Contra Costa
Sup.Ct.Case No. C05-02349);TAYLOR,et al. v.
23 EAST BAY MUNICIPAL UTILITY DISTRICT,et KNOX, et al. v. MOUNTAIN
al.(Contra Costa Sup.Ct. Case No. C05-02306); CASCADE, et al. (Contra Costa Superior
24 BECERRA v. KINDER MORGAN ENERGY Court Case No. C05=00281)[Designated
PARTNERS,L.P., et al(Contra Costa Sup.Ct.Case case for Cross Complaint filings]
25 No.005-02451); IM, et al. v. KINDER MORGAN,
INC.,et al.(Contra Costa Sup.Ct.Case No.005-
26 02077);PAASCH,et al.v.EAST BAY
MUNICIPAL UTILITY DISTRICT, et al.(Contra
27 Costa Sup.Ct. Case No.005-01844);FUENTES,et
al. v. KINDER MORGAN, et al.(Contra Costa
28 Sup.Ct.Case No.005-02286)
@ CROSS COMPLAINT BY COUNTY OF CONTRA COSTA AND CONTRA COSTA FLOOD
CONTROL AND WATER CONSERVATION DISTRICT
Judicial Council Coordination Proceedings No. 4433 1
I Defendants and Cross-Complainant Contra Costa County and Contra Costa County
2 Flood Control and Water Conservation District (herein after"CONTRA COSTA") by way of
3 a Cross-Complaint(hereinafter"Cross-Complaint") hereby brings the following cross-claims
4 against Cross-Defendants East Bay Municipal Utility District(hereinafter"EBMUD"), Kinder
5 Morgan, Inc., Kinder Morgan G.P., Inc., Kinder Morgan Energy Partners L.P., SFPP, L.P.,
6 Mountain Cascade, Inc., Comforce Technical Services, Inc., Carollo Engineers, Camp dresser
7 &McKee, Inc., and Roes 1 through2 00, inclusive (collectively hereinafter"Cross-
8 Defendants"), and complains and alleges as follows:
9 GENERAL ALLEGATIONS
10 1. The County of Contra Costa is, and at all times relevant herein was, a public entity
11 created under the Constitution and laws of the California. The Board of Supervisors
12 maintains its offices at 651 Pine Street, Martinez, California.
13 2. The Contra Costa Flood Control and Water Conservation District is, and all time
14 relevant herein, a public entity and a special district under the supervision and control
15 of the Contra Costa County Board of Supervisors.
16 3. Cross Defendant EBMUD is, and at all times relevant herein was, a publicly owned
17 utility formed under the Municipal District act passed by the California Legislature in
18 1921. EBMUD maintains its administrative and head offices in the City of Oakland,
19 California.
20 4. Contra Costa filed a timely government tort claim with EBMUD, and is currently in
21 negotiations with EBMUD concerning indemnification and defense of Contra Costa in
22 the matters coordinated in the Gas Pipeline Explosion Cases, Cori tra Costa Superior
23 Court Action number JCCP 4433 and in the as yet uncoordinated matter of Mountain
24 Cascade, Inc., v. Kinder Morgan, more fully described below. The EBMUD governing
25 board has not yet authorized the indemnification and defense of CONTRA COSTA.
26 5. CONTRA COSTA is informed and believes, and based thereon alleges, that Defendant
27 and Cross-Defendant Kinder Morgan Energy Partners L.P. ("KMEP") is, and at all
28 times relevant herein was, a limited partnership doing business in the State of
CROSS COMPLAINT BY COUNTY OF CONTRA COSTA AND CONTRA COSTA FLOOD
CONTROL AND WATER CONSERVATION DISTRICT
Judicial Council Coordination Proceedings No. 4433 2
I California.
2 6. CONTRA COSTA is informed and believes, and based thereon alleges, that Defendant
3 and Cross-Defendant Kinder Morgan, Inc. ("KM") is, and at all times relevant herein
4 was, a Delaware corporation doing business in the State of California.
5 7. CONTRA COSTA is informed and believes, and based thereon alleges, that Defendant
6 and Cross-Defendant SFPP, L.P. ("SFPP") is, and at all times relevant herein was, a
7 Delaware limited partnership doing business in the State of California.
8 8. CONTRA COSTA is informed and believes, and based thereon alleges, that Defendant
9 and Cross-Defendant Kinder Morgan, G.P. Inc. ("KMGP") is, and at all times relevant
10 herein was, a Delaware corporation doing business in the State of.Califomia.
11 9. Defendants KMEP, KM, SFPP, and KMGP will be referred to collectively as KINDER
12 MORGAN.
13 10. CONTRA COSTA is informed and believes, and based thereon alleges, that Defendant
14 and Cross-Defendant Comforce Technical Services, In. ("COMFORCE") is, and at all
15 times relevant herein was, a Delaware corporation doing business in the State of
16 California.
17 11. CONTRA COSTA is informed and believes, and based thereon alleges, that Defendant
18 and Cross-Defendant Mountain Cascade Incorporated ("MC") is, and at all times
19 relevant herein, was, a California corporation.
20 12. CONTRA COSTA is informed and believes, and based thereon alleges, that Defendant
21 and Cross-Defendant Camp Dresser&McKee, Inc.,-("CDM") is, and at all times
22 relevant herein was, a Massachusetts corporation qualified to do business.and doing
23 business in the State of California.
24 13. CONTRA COSTA is informed and believes, and based thereon alleges that Defendant
25 and Cross-Defendant Carollo Engineers, P.C. ("CAROLLO") is, and at all times
26 relevant herein was, an Arizona corporation qualified to do business and doing business
27 in the State of California.
28 14. The true names and capacities of Cross-Defendants sued herein as Roes 1 through 200,
CROSS COMPLAINT BY COUNTY OF CONTRA COSTA AND CONTRA COSTA FLOOD
CONTROL AND WATER CONSERVATION DISTRICT
Judicial Council Coordination Proceedings No. 4433 3
I inclusive, are unknown and therefore CONTRA COSTA sues these Cross-Defendants
2 by fictitious names. CONTRA COSTA is informed and believes, and on that basis
3 alleges, that each Cross-Defendant designated Roe is responsible under law in some
4 manner, negligently, contractually or otherwise, for the events and happenings referred
5 to in this Cross-Complaint, and thereby proximately caused the damages and injuries to
6 CONTRA COSTA as alleged. CONTRA COSTA will amend this Cross-Complaint to
7 allege the true names and capacities of these fictitiously named Cross-Defendants when
8 the same has been ascertained.
9 15. CONTRA COSTA is informed and believes, and on that basis alleges, that at all times
10 relevant herein, each of the Cross-Defendants was the agent, employee and/or servant
11 of each of the remaining Cross-Defendants and in doing the things mentioned herein,
12 was acting within the scope of such agency and employment with.the permission and
13 consent of each of the remaining Cross-Defendants.
14 16. Plaintiffs have filed complaints for wrongful death, personal injury, property damage,
15 and/or other loss or damage as a result of the incident set forth in the complaints on or
16 about November 9, 2004 ("Plaintiffs"). Most of these actions have been coordinated
17 in Contra Costa County Superior Court as the "Gas Pipeline Explosion Cases." Any
18 future complaints alleging wrongful death, personal injury, property damage, and/or
19 other loss or damage arising from the subject incident on or about November 9, 2004,
20 will also be considered to be by"Plaintiffs"herein and subject to this master cross-
21 complaint pursuant to court order of December 8, 2005, in this coordinated proceeding.
22 The coordinated cases are:
23 a. Angeles v. Kinder Morgan, et al., Alameda County Superior Court Case No. RG-
24 05-195680;
25 b. Arias, et al. v. Kinder Morgan, et al., Alameda County Superior Court Case No.
26 RG-05-195567;
27 C. Chabot v. East Bay Municipal Utility District, et al., Contra Costa County
28 Superior Court, Case No. C05-02312;
CROSS COMPLAINT BY COUNTY OF CONTRA COSTA AND CONTRA COSTA FLOOD
CONTROL AND WATER CONSERVATION DISTRICT
Judicial Council Coordination Proceedings No. 4433 4
I d. Farley v. Mountain Cascade, Inc., et al., Contra Costa County Superior Court,
2 Case No. C05-01573;
3 e. Fuentes v. Kinder Morgan Energy Partners, L.P., et al., Contra Costa County
4 Superior Court, Case No. C05-02286;
5 f. Im v. Kinder Morgan, Inc., Contra Costa County Superior Court, Case No. C05-
6 02077;
7 g. Knox v. Mountain Cascade, Inc., Contra Costa County Superior Court, Case No.
8 C05-00281;
9 h. Matamoros v. Kinder Morgan Energy Partners, L.P., Contra Costa County
10 Superior Court, Case No. JCCP No. 4433;
11 i. Paasch v. East Bay Municipal Utility District, Contra Costa County Superior
12 Court, Case No. C05-01844;
13 j. Ramos v. East Bay Municipal Utility District, Contra Costa County Superior
14 Court, Case No. C05-01840;
15 k. Reyes v. East Bay Municipal Utility District, Alameda County Superior Court
16 Case No. RG-05-20770;
17 1. Taylor v. East Bay Municipal Utility District, Contra Costa County Superior
18 Court, Case No. C05-02306;
19 M. United Services Automobile Association v. East Bay Municipal Utility District,
20 Contra Costa County Superior Court, Case No. C05-02128;
21 17. These Plaintiffs' complaints will be referred to as "Plaintiffs' Complaints." Thus far
22 CONTRA COSTA has been named in only one of the above complaints, i.e.Ramos V.
23 East Bay Municipal Utility District, Contra Costa County Superior Court, Case No.
24 C05-01840. CONTRA COSTA disputes and denies liability for the events and
25 damages alleged in said Plaintiffs' complaints
26 18. CONTRA COSTA has also been sued by MOUNTAIN CASCADE,INC., in a cross
27 complaint filed in the JCCP 4433 coordinated action and in a complaint filed in
28 Mountain Cascade, Inc. v. Kinder Morgan Energy Partners L.P. (Contra Costa
CROSS COMPLAINT BY COUNTY OF CONTRA COSTA AND CONTRA COSTA FLOOD
CONTROL AND WATER CONSERVATION DISTRICT
Judicial Council Coordination Proceedings No. 4433 5
I Superior Court Case No. C05-92576. CONTRA COSTA disputes and denies liability
2 for the events and damages alleged in the MCI Cross Complaint and Complaint.
3 FIRST CAUSE OF ACTION
4 (Declaratory Relief Against All Cross-Defendants)
5 19. CONTRA COSTA incorporates herein each and every allegation contained in
6 Paragraphs 1 through 18, inclusive.
7 20. As a result of the filing of the Plaintiffs' Complaints, MCI's Cross-Complaint and
8 MCI's Complaint, CONTRA COSTA has been required to retain,;and has retained,
9 legal counsel to defend against Plaintiffs' and MCI's claims and CONTRA COSTA has
10 incurred, and will continue to incur, costs and expenses for investigation, expert
11 witnesses, legal fees and other costs and expenses necessary to properly defend the
12 actions, the full amount of which ash not yet been ascertained.
13 21. CONTRA COSTA contends that Cross-Defendants, not CONTRA COSTA, are solely
14 responsible for the events, occurrences, conduct and/or resulting damages, if any,
15 described in Plaintiffs' Complaints, and MCI's Complain and Cross Complaintt. If
16 Plaintiffs and MCI were, in fact, injured and damaged as alleged in the Plaintiffs'
17 Complaints, MCI's Cross-Complaint or MCI's Complaint, then said injuries and
18 damages were solely and entirely the result of acts and/or omissions of Cross-
19 Defendants.
20 22. An actual controversy now exists between CONTRA COSTA and Cross-Defendants in
21 that CONTRA COSTA contends that(1)as between CONTRA COSTA and Cross-
22 Defendants, responsibility if any, for the damages claimed by Plaintiffs and MCI
23 herein, rests entirely or partially on Cross-Defendants; and (2) Cross-Defendants are
24 obligated to defend and partially or fully indemnify CONTRA COSTA for any sums
25 CONTRA COSTA may be compelled to pay as a result of any damages,judgment or
26 other awards recovered by Plaintiffs or MCI against CONTRA COSTA.
27 23. CONTRA COSTA desires judicial determination of the respective rights and duties of
28 CONTRA COSTA and Cross-Defendants with respect to Plaintiffs' and MCI's claims
CROSS COMPLAINT BY COUNTY OF CONTRA COSTA AND CONTRA.COSTA FLOOD
CONTROL AND WATER CONSERVATION DISTRICT
Judicial Council Coordination Proceedings No. 4433 6
1 TA in fs1
for damages. In particular, CONTRA COS desires a declaration 0 sole liability of
2 Cross-Defendants for these damages, and a declaration of Cross-Defendants'
3 responsibility to CONTRA COSTA for any sums that CONTRA COSTA may be
4 compelled to pay and for which Cross-Defendants are determined responsible, entirely
5 or in part.
6 24. Such a declaration is necessary and appropriate at this time in order that CONTRA
7 COSTA may ascertain its legal rights and duties with respect to Plaintiffs' and MCI's
8 claims for damages.
9 WHEREFORE, CONTRA COSTA prays for judgment against Cross-Defendants, and
10 each of them as set forth below.
11 SECOND CAUSE OF ACTION
12 (Express Indemnity Against EBMUD)
13 25. CONTRA COSTA incorporates herein each and every allegation contained in
14 Paragraphs 1 through 24, inclusive.
15 26. EBMUD is contractually obligated to defend, indemnify, and hold CONTRA COSTA
16 harmless for any claims, losses or damages arising out of, or resulting from the
17 performance of the work on the pipeline extension project described in the complaints
18 and cross complaints except for damages arising from CONTRA COSTA's sole
19 negligence or wilful misconduct as more fully described in the government tort claim
20 filed with EBMUD on January 13, 2006 and the documents attached thereto which are
21 hereby incorporated by this reference.
22 27. Although CONTRA COSTA has denied and continues to deny that Plaintiffs or MCI
23 have in any way been damaged by any act or failure to act on the part of CONTRA
24 COSTA, in the event that Plaintiffs and/or MCI prevail against CONTRA COSTA on
25 the purported causes of action asserted against CONTRA COSTA in Plaintiffs'
26 Complaint, MCI's Cross-Complaint, and MCI's Complaint, CONTRA COSTA will be
27 damaged in an amount equal to any judgment rendered against it in favor of the
28 Plaintiffs and/or MCI and will be entitled to be indemnified and reimbursed by
CROSS COMPLAINT BY COUNTY OF CONTRA COSTA AND CONTRA;COSTA FLOOD
CONTROL AND WATER CONSERVATION DISTRICT
Judicial Council Coordination Proceedings No. 4433 7
1 EBMUD in the same amount. The full amount of said damages is not presently
2 ascertainable and will be not be ascertainable until the conclusion;of this action, at
3 which time CONTRA COSTA will seek leave to amend this Cross-complaint by
4 inserting such amount.
5 28. CONTRA COSTA is also entitled to full reimbursement from EBMUD for any and all
6 attorneys' fees and costs incurred in this defense of Plaintiffs' action, MCI's cross-
7 action, MCI's action, and the prosecution of this Cross-Complaint. The full amount of
8 said damages is not presently ascertainable and will not be ascertainable until the
9 conclusion of this action, at which time CONTRA COSTA will seek leave of Court to
10 amend this Cross-Complaint by asserting such amount.
11 WHEREFORE, CONTRA COSTA prays for judgment against EBMUD as set forth
12 below.
13 THIRD CAUSE OF ACTION
14 (Equitable Indemnity Against All Cross-Defendants)
15 29. CONTRA COSTA incorporates herein each and every allegation contained in
16 Paragraphs 1 through 28, inclusive.
17 30. CONTRA COSTA is informed and believes and thereon alleges that Cross-
18 Defendants are either partially or wholly responsible and liable for any damages allegedly
19 sustained by Plaintiffs or MCI. In the event Plaintiffs and/or MCI recover damages through
20 settlement or judgment from CONTRA COSTA, the damages will be the proximate result of
21 the primary and active negligence or other fault of Cross-Defendants. The conduct of
22 CONTRA COSTA did not proximately contribute to Plaintiffs' or MCI's injuries and was at
23 most secondary and passive in nature.
24 31. Therefore, CONTRA COSTA is entitled to full or partial indemnity from Cross-
25 Defendants according to the principles of comparative fault and equitable allocation of loss for
26 any contribution made by CONTRA COSTA to Plaintiffs' and/or MCI's.recovery or for any
27 amount or amounts for which CONTRA COSTA is found liable to the Plaintiffs and/or MCI in
28 excess of the percentage of the verdict of judgment which is proportionate to the comparative
CROSS COMPLAINT BY COUNTY OF CONTRA COSTA AND CONTRKCOSTA FLOOD
CONTROL AND WATER CONSERVATION DISTRICT
Judicial Council Coordination Proceedings No. 4433 8
I fault, if any of CONTRA COSTA.
2 32. In view of the fact that Plaintiffs' and MCI's damages, if any, were caused in
3 whole or in part by the actions or inactions of Cross-Defendants, it is equitable and appropriate
4 for Cross-Defendants to indemnify CONTRA COSTA for any damages that may be assessed
5 against CONTRA COSTA, and, furthermore, for any legal expenses, including but not limited
6 to, attorneys' fees, that CONTRA COSTA may incur in defending the action.
7 WHEREFORE, CONTRA COSTA prays for judgment against Cross-Defendants, and
8 each of them, as set forth below.
9 PRAYER FOR RELIEF
10 WHEREFORE, EBMUD prays this Court to enter judgment as follows:
11 On the First Cause of Action:
12 1. For a judicial determination that Cross-Defendants are obligated to fully indemnify
13 CONTRA COSTA for all past and future fees incurred to defend those portions of Plaintiffs'
14 Complaint, MCI's Cross-Complaint and MCI's Complaint relating to Cross-Defendants'
15 conduct and all damages claims by Plaintiffs and MCI, if any are found to exist, that arise from
16 Cross-Defendants' conduct.
17 2. For a declaration that Cross-Defendants are obligated to fully indemnify CONTRA
18 COSTA if this Court adjudges that CONTRA COSTA is compelled to pay any sum as the
19 result of any damages,judgment, or other award recovered by Plaintiffs and/or MCI in this
20 litigation;
21 On the Second Cause of Action:
22 1. That EBMUD be held liable by this court to indemnify and reimburse CONTRA
23 COSTA, in whole or in part, in the amount of any judgment that may be rendered against
24 CONTRA COSTA and in favor of Plaintiffs and/or MCI, and proportioned to the
25 responsibility of Cross-Defendants.
26 On the Third Cause of Action:
27 1. That Cross-Defendants, inclusive,be held liable by this court to indemnify and
28 reimburse CONTRA COSTA, in whole or in part, in the amount of any judgment that maybe
CROSS COMPLAINT BY COUNTY OF CONTRA COSTA AND CONTRA,COSTA FLOOD
CONTROL AND WATER CONSERVATION DISTRICT
Judicial Council Coordination Proceedings No. 4433 9
1 rendered against CONTRA COSTA and in favor of Plaintiffs and/or MCI, and proportioned to
2 the responsibility of Cross-Defendants;
3 On all Causes of Action:
4 A. For costs of suit incurred herein;
5 B. For attorneys' fees and expenses;
6 C. For interest as allowed by law; and
7 D. For such other relief as this Court deems appropriate.
8
9 DATED: January 20, 2006 SILVANO B. MARCHESI, County Counsel
10
11
12 By.
(jRE(jORY C. HARVEY-
13 Assistant County Counsel
Attorneys for Cross Complainants
14 CONTRA COSTA COUNTY&
15 COUNTY OF CONTRA COSTA
FLOOD CONTROL AND WATER
16 CONSERVATION DISTRICT
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CROSS COMPLAINT BY COUNTY OF CONTRA COSTA AND CONTRA'COSTA FLOOD
CONTROL AND WATER CONSERVATION DISTRICT
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